State v. Chauncey , 295 Neb. 453 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. CHAUNCEY
Cite as 295 Neb. 453
State of Nebraska, appellee, v.
Dustin Chauncey, appellant.
___ N.W.2d ___
Filed January 6, 2017. No. S-15-405.
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. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value.
4. 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.
5. Motions for Mistrial: Appeal and Error. The decision whether to
grant a motion for mistrial will not be disturbed on appeal in the absence
of an abuse of discretion.
6. Motions to Dismiss: Appeal and Error. Any error in a ruling on a
motion to dismiss under Neb. Rev. Stat. § 29-1418(3) (Reissue 2016)
based on the sufficiency of evidence before a grand jury is cured by a
subsequent finding at trial of guilt beyond a reasonable doubt which is
supported by sufficient evidence.
7. Prosecuting Attorneys: Appeal and Error. The decision to appoint
a special prosecutor is addressed to the discretion of the trial court,
and absent an abuse of discretion, such ruling will not be disturbed
on appeal.
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STATE v. CHAUNCEY
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8. Evidence: Words and Phrases. Evidence is relevant if it tends in any
degree to alter the probability of a material fact.
9. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
10. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
11. ____: ____. Unfair prejudice speaks to the capacity of some concededly
relevant evidence to lure the fact finder into declaring guilt on a ground
different from proof specific to the offense charged, commonly on an
emotional basis.
12. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A
mistrial is properly granted in a criminal case where an event occurs
during the course of a trial that is of such a nature that its damaging
effect cannot be removed by proper admonition or instruction to the jury
and thus prevents a fair trial. The defendant must prove that the alleged
error actually prejudiced him or her, rather than creating only the pos-
sibility of prejudice.
13. Motions for Mistrial: Motions to Strike: Appeal and Error. Error
cannot ordinarily be predicated on the failure to grant a mistrial if an
objection or motion to strike the improper material is sustained and the
jury is admonished to disregard such material.
Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
Todd W. Lancaster, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Following a grand jury investigation into the death of the
2-year-old daughter of Dustin Chauncey’s girlfriend, a special
prosecutor filed charges against Chauncey. Chauncey appeals
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his conviction and sentence in the district court for Scotts Bluff
County for intentional child abuse resulting in death. Chauncey
assigns numerous errors addressed to the grand jury process
and trial rulings. We affirm.
II. STATEMENT OF FACTS
1. Background and Evidence at Trial
On July 11, 2008, police officers responding to a call to
a house in Gering, Nebraska, found the body of 2-year-old
Juliette Geurts. Juliette had lived in the house with her twin sis-
ter, Jaelyn Geurts; their mother, Charyse Geurts; and Chauncey,
who was Charyse’s boyfriend. Charyse’s ex-­boyfriend, Brandon
Townsend, also lived in the house. When the first police offi-
cer entered the house, she saw Charyse on the floor next to
Juliette’s body, Chauncey pacing back and forth, and Townsend
standing in a doorway holding Jaelyn.
Another officer who arrived at the house observed discol-
oration on Juliette’s abdomen and a laceration on the left side
of her head. An autopsy later revealed that Juliette’s death
had been caused by blunt force trauma and that the manner
of death was homicide. The pathologist who conducted the
autopsy testified that Juliette had been beaten to death and
that she had sustained several injuries—including a subarach-
noid hemorrhage in the brain, a lacerated liver, and bleeding
into the mesentery—any one of which might have caused
her death.
The first officer who had arrived at the house was unable to
immediately communicate with Charyse and Chauncey because
both were too emotional. Chauncey had identified himself to
the officer using the first name “Roy,” but the officer later
learned that his first name was actually “Dustin.” The officer
was able to communicate with Townsend.
As part of the investigation of Juliette’s death, the cloth-
ing she was wearing was sent to the state crime laboratory
for testing. A stain on Juliette’s shirt, which was found to
include a sperm fraction and a nonsperm fraction, was tested
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for DNA. It was determined that Chauncey was included as
a major contributor to the DNA of the sperm fraction and a
contributor to the DNA of the nonsperm fraction.
Townsend testified as follows at the trial in this case.
Townsend had briefly dated Charyse before she began dat-
ing Chauncey, and he lived at the house with them in order
to care for Juliette and Jaelyn. On the evening of July 10,
2008, Townsend, Charyse, Chauncey, and the girls had all
attended a carnival. Juliette did not feel well at the carnival,
and after they all returned home, Townsend put the girls to
bed. Charyse went to check on the girls around 2 a.m. and
discovered that Juliette was having a seizure. Charyse and
Townsend decided that Juliette should be taken to the hos-
pital. Chauncey at first resisted the idea of taking her to the
hospital, but eventually Charyse and Chauncey took her to
the hospital while Townsend stayed at home with Jaelyn.
After they left, Townsend put Jaelyn back to bed and he went
to the couch where he “end[ed] up laying down and pass-
ing out.”
Townsend testified that the next thing he remembered was
waking up around 11 a.m. the next day. Shortly after wak-
ing, he went to check on the girls and found Jaelyn already
awake. He turned to wake up Juliette, and saw that her “bed
had almost been crushed down to the ground . . . almost as if
something really heavy had been on the bed.” He saw Juliette
“kind of like in the bed folding into it [a]nd, she was very
purple and very stiff.” Townsend went and picked up Juliette,
while attempting to prevent Jaelyn from seeing Juliette’s con-
dition. Townsend carried Juliette to the room in which Charyse
and Chauncey were sleeping. When Townsend entered the
room, Chauncey jumped up and asked Townsend what was
going on. Townsend told them that there was something wrong
with Juliette. Chauncey grabbed Juliette from Townsend’s
arms and held her at arm’s length from himself. Townsend
heard Chauncey say, “‘Oh, my fucking God, she is fucking
dead. I need to fucking leave.’” Chauncey handed Juliette
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back to Townsend, who took her to the living room and set
her on the floor. Townsend tried to find a telephone, but
Charyse was “very hysterical,” and Chauncey said he could
not find one. Townsend ran to a neighbor’s house and asked
them to call the police because he thought Juliette was dead.
He returned to the house and saw that Charyse was crying
and screaming Juliette’s name, while Chauncey was getting
dressed. Townsend testified that “[t]here was a discussion if
anybody asked [Chauncey’s] name, his name is not Dustin, his
name is Roy.”
In addition to Townsend’s testimony described above and
other evidence presented at trial, the State called Paul Cardwell
as a witness. In 2014, Cardwell had been housed in the same
unit as Chauncey at the Scotts Bluff County jail. Prior to ques-
tioning Cardwell, the State read the parties’ stipulation to the
jury to the effect that Cardwell had been convicted in federal
court of three felony offenses involving fraud and that he had
the potential of having his sentence reduced if the federal
court determined that he had “provided substantial assist­
ance to the government.” Cardwell testified that in August
2014, Chauncey had discussed his case with Cardwell and
another prisoner. Chauncey told them about the charges for
which he was in jail and described the events of July 11, 2008,
to them.
Cardwell’s testimony regarding Chauncey’s jailhouse state-
ments was as follows: After Charyse and Chauncey had
returned from taking Juliette to the hospital, they were hav-
ing sex in the bedroom when Juliette came to the door of the
bedroom asking for Charyse because she did not feel well.
Chauncey was angry that Juliette had interrupted them, so
he got out of bed and kicked her in the stomach. While he
was still naked, he picked up Juliette to return her to her
room, and he speculated that his sperm got on her shirt when
he picked her up. Juliette was crying because of the kick to
the stomach; because Chauncey wanted “her to shut up,” he
punched her in the upper chest area. Chauncey returned to
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finish having sex with Charyse, and then he went to sleep. He
was awoken around 11 a.m. by shouts that Juliette was not
breathing. As they waited for police to arrive, Charyse and
Chauncey decided that they would lie about his name because
he was wanted on outstanding warrants.
2. Grand Jury Proceedings
Although an autopsy was conducted on Juliette’s body on
July 12, 2008, and the pathologist concluded that the manner
of death was homicide, the State had not filed charges against
anyone in connection with Juliette’s death as of mid-2012. On
July 11, 2012, certain community petitioners filed a petition in
the district court for Scotts Bluff County for a grand jury inves-
tigation into Juliette’s death. On August 8, the court appointed
James L. Zimmerman as a special prosecutor. In the appoint-
ment order, the court found that this was “an appropriate case
to appoint a special prosecutor to investigate and prosecute
this matter.”
Zimmerman presented the case to a grand jury. On January
14, 2013, Zimmerman filed an indictment, signed by the
foreperson of the grand jury, in the district court. The indict-
ment charged Chauncey with three counts: count I, inten-
tional child abuse resulting in death; count II, manslaughter;
and count III, providing false information to a peace officer.
Counts II and III were dismissed prior to trial because the
statute of limitations had expired on the offenses. The portion
of the indictment charging child abuse resulting in death read
as follows:
COUNT I
Sec. 28-707(1)(b)
Penalty Sec. 28-707(6)
That DUSTIN CHAUNCEY on or about July 11, 2008,
then in Scotts Bluff County, Nebraska did knowingly or
intentionally cruelly punish a minor child, Juliette Geurts,
which resulted in the death of such child contrary to the
statutes of the State of Nebraska.
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STATE v. CHAUNCEY
Cite as 295 Neb. 453
3. Pretrial Motions
On the motion of the Scotts Bluff County Attorney, the dis-
trict court appointed Zimmerman, under the authority of Neb.
Rev. Stat. § 23-1204.01 (Reissue 2012), to act as a special
deputy county attorney in the prosecution of Chauncey.
On February 5, 2014, Chauncey filed a motion to dis-
miss the indictment pursuant to Neb. Rev. Stat. § 29-1418(3)
(Reissue 2016) “for the reason that the grand jury finding
of probable cause is not supported by the record.” Although
the grand jury had considered additional evidence, Chauncey
requested that the court review only Townsend’s testimony to
the grand jury in order to determine whether there was evi-
dence supporting the probable cause finding. The State agreed
to the request.
After reviewing Townsend’s grand jury testimony, the
court concluded that the evidence showed probable cause that
Chauncey committed intentional child abuse resulting in death.
The court therefore overruled Chauncey’s motion to dismiss
that count. In reaching this conclusion, the court stated that
the standard for determining whether probable cause existed
for a grand jury indictment was the same as the standard for
a plea in abatement challenging the sufficiency of evidence at
a preliminary hearing; to wit, the test is not whether guilt is
established beyond a reasonable doubt, but whether the evi-
dence “renders the charge against the accused within reason-
able probabilities.” The court’s rulings with regard to the two
other counts in the indictment are not set forth herein because
those counts were otherwise dismissed prior to trial.
On August 1, 2014, Chauncey filed a motion to quash the
indictment. He listed three grounds in support of the motion:
(1) The appointment of Zimmerman as special prosecutor
for the grand jury proceeding was improper; (2) regarding
count I, Zimmerman incorrectly advised the grand jury to
review a 2012 version of the statute setting forth the offense
of child abuse resulting in death, when the correct version
of the statute was the one in effect in 2008 when the alleged
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offense occurred, see Neb. Rev. Stat. § 28-707 (Reissue 2008
& Cum. Supp. 2012); and (3) the statute of limitations had run
on counts II and III. As noted, the court ultimately dismissed
counts II and III based on the statute of limitations. However,
the court found that Chauncey’s first and second grounds for
the motion to quash were without merit and it therefore over-
ruled his motion to quash count I—intentional child abuse
resulting in death.
With regard to the appointment of Zimmerman as special
prosecutor for the grand jury proceeding, the court noted that
Neb. Rev. Stat. § 23-1205 (Reissue 2012) provides that a dis-
trict court may appoint an acting county attorney “[d]ue to
the absence, sickness, disability, or conflict of interest of the
county attorney and his or her deputies . . . .” The court found
that a conflict of interest existed in this case because until the
petition for a grand jury investigation into Juliette’s death was
filed in July 2012, the county attorney’s office had declined
to prosecute anyone for Juliette’s death since its occurrence in
July 2008. The court therefore found that the appointment of
Zimmerman was proper.
With regard to Zimmerman’s advice regarding the different
versions of § 28-707, the court noted that count I as charged
in the indictment regarding intentional child abuse resulting
in death used the correct language of § 28-707(6) based on
the 2008 version. The court stated, “Whether the grand jury
may have been given erroneous advice, or may have followed
erroneous advice, does not matter if the indicted offense is
supported by the evidence, which it is.”
4. Motion in Limine and Evidence
R egarding DNA Sperm Fraction
Prior to trial, Chauncey filed a motion in limine, which in
part addressed evidence of DNA testing that showed him to
be a major contributor to the sperm fraction that was found
on Juliette’s shirt. He requested that the State be prohibited
from offering or mentioning such evidence during voir dire,
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opening statements, or trial without further hearing by the
court. He argued that because there was no allegation he had
sexually assaulted Juliette, evidence regarding a sperm frac-
tion would be unfairly prejudicial, and that the State could
adequately prove his presence at the scene by reference to the
nonsperm fraction. The State responded that the sperm frac-
tion would be more probative of Chauncey’s identity as the
perpetrator; the State’s theory was that the nonsperm fraction
could have been on Juliette’s clothing for some time but the
presence of the sperm fraction indicated more recent contact,
because sperm is more likely to transfer when wet than when
dry. At the conclusion of a hearing on the motion in limine,
the court reserved its ruling with regard to DNA evidence
related to the sperm fraction until the trial. The court reasoned
that the State’s arguments regarding the timing of the transfer
of samples would need to be developed and considered with
respect to foundation before the evidence was received. The
court ordered the State to notify the court and the defense in
advance of offering such evidence in order to allow time for
objections and rulings on the evidence.
During opening statements, the prosecutor stated that the
clothing Juliette was wearing was sent to the state laboratory
for testing and that “the lab found on the little undershirt
some sperm and [it] tested that sperm.” Chauncey objected
at this point, and the court instructed the jury to disregard
the prosecutor’s comments about sperm on the shirt. At the
conclusion of opening statements, Chauncey moved for a
mistrial and argued that the State had violated the court’s
order when it mentioned the sperm sample. The court over-
ruled Chauncey’s motion for mistrial, noting in part that
the jury had been specifically advised to disregard the com-
ments regarding the sperm fraction and that the jury had been
instructed as a general matter that the comments of counsel
were not evidence.
The court overruled another motion for mistrial when the
State questioned Cardwell regarding jailhouse statements
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Chauncey had made to Cardwell explaining how Chauncey’s
sperm might have gotten on Juliette’s clothing. Finally, with
regard to the motion in limine, before the State’s DNA expert
testified at trial, the court heard arguments by the parties and
allowed Chauncey to voir dire the expert. Thereafter, the court
overruled the motion in limine and allowed the DNA expert’s
testimony regarding testing of the sperm fraction.
5. Conclusion of Trial
At the end of the trial, the court entered a judgment of con-
viction based on the jury’s finding that Chauncey was guilty of
intentional child abuse resulting in death. The court thereafter
sentenced Chauncey to imprisonment for 80 years to life.
Chauncey appeals his conviction and sentence.
III. ASSIGNMENTS OF ERROR
Chauncey claims that the district court erred when it (1)
overruled his motion to dismiss the indictment, because the
grand jury’s finding of probable cause was not supported
by the record; (2) overruled his motion to quash the indict-
ment, because (a) the appointment of the special prosecutor
was improper and (b) the special prosecutor misled the grand
jury with inaccurate advice regarding the applicable law and
penalties; (3) overruled his motion in limine to prohibit the
State from presenting evidence regarding DNA testing of the
sperm fraction; and (4) overruled his motions for mistrial
made (a) after the prosecutor mentioned testing of sperm
found on Juliette’s clothing during opening statements and (b)
after the prosecutor questioned Cardwell regarding Chauncey’s
statements explaining how his sperm might have gotten on
Juliette’s clothing.
IV. STANDARDS OF REVIEW
[1-4] 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 dis-
cretion a factor in determining admissibility. State v. Draper,
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ante p. 88, 886 N.W.2d 266 (2016). 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. A trial
court exercises its discretion in determining whether evidence
is relevant and whether its prejudicial effect substantially out-
weighs its probative value. State v. Johnson, 290 Neb. 862,
862 N.W.2d 757 (2015). 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 con-
science, reason, and evidence. Id.
[5] The decision whether to grant a motion for mistrial will
not be disturbed on appeal in the absence of an abuse of discre-
tion. State v. Mitchell, 294 Neb. 832, 884 N.W.2d 730 (2016).
V. ANALYSIS
1. Grand Jury Proceedings —Motion to Dismiss:
A ny Error in District Court’s Ruling on
Chauncey’s Motion to Dismiss the Indictment
Based on Lack of Probable Cause Was
Cured by Finding at Trial of Guilt
Beyond a R easonable Doubt
Chauncey first claims that the district court erred when it
overruled his motion to dismiss the indictment on the basis
that the grand jury’s finding of probable cause to indict was
not supported by the grand jury record. As explained below, we
conclude that error, if any, in the court’s ruling on the motion
to dismiss was cured by the trial jury’s finding of guilt beyond
a reasonable doubt.
Chauncey moved the district court to dismiss the indictment
pursuant to § 29-1418(3), which provides as follows:
The district court before which the indicted defendant is
to be tried shall dismiss any indictment of the grand jury
if such district court finds, upon the filing of a motion
by the indicted defendant based upon the grand jury
record without argument or further evidence, that the
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grand jury finding of probable cause is not supported by
the record.
Based on its review of Townsend’s grand jury testimony, the
court concluded that the record presented to the grand jury
supported the grand jury’s finding that there was probable
cause that Chauncey committed intentional child abuse result-
ing in death, and it therefore overruled the motion to dismiss
the indictment.
Both Chauncey and the State acknowledge in their briefs on
appeal that we have not set forth a standard of review of a dis-
trict court’s ruling on a motion to dismiss an indictment under
§ 29-1418(3), and both parties acknowledge that with respect
to the question of proof required, “probable cause” is a flex-
ible standard. With respect to the standard of review, Chauncey
urges the standard used to review a ruling on a motion to sup-
press whereas the State urges the standard used to review a suf-
ficiency of the evidence claim. However, we need not resolve
the standards issue, because we conclude that error, if any, in
the district court’s determination that the grand jury’s finding
that probable cause was supported by the grand jury record
was cured when the trial jury found Chauncey guilty beyond a
reasonable doubt.
The State notes that we have held that an error in a rul-
ing on a plea in abatement challenging whether there was
sufficient evidence to bind a case over for trial is cured by a
subsequent finding at trial of guilt beyond a reasonable doubt
which is supported by sufficient evidence. See State v. Green,
287 Neb. 212, 842 N.W.2d 74 (2014). The State suggests we
apply the same reasoning to a ruling on a motion to dismiss
an indictment for lack of evidence, because there is no mean-
ingful distinction between a probable cause finding after a
preliminary hearing and a probable cause finding after a grand
jury proceeding. The State’s argument finds support in juris-
prudence elsewhere.
We note, for example, that Colorado has a statute, Colo.
Rev. Stat. Ann. § 16-5-204(4)(k) (West 2016), which uses
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the same language as § 29-1418(3). The Supreme Court of
Colorado has said that “[t]he district court’s function in review-
ing the grand jury record pursuant to section 16-5-204(4)(k) is
similar to the role of the court at a preliminary hearing in deter-
mining the existence or absence of probable cause.” People v.
T & S Leasing, Inc., 763 P.2d 1049, 1050 (Colo. 1988), citing
People v. Luttrell, 636 P.2d 712 (Colo. 1981). The Colorado
Court of Appeals in People v. Tyler, 802 P.2d 1153, 1154-55
(Colo. App. 1990), noted this similarity and the holdings in
Colorado precedent that “once a defendant has been found
guilty beyond a reasonable doubt, the issue of probable cause
found at a preliminary hearing becomes moot.” The Colorado
Court of Appeals in People v. Tyler extended this reasoning
and concluded that whether there was probable cause before
the grand jury became moot after a defendant has been found
guilty beyond a reasonable doubt by a trial jury. Id.
[6] We agree with the Colorado court’s reasoning and apply
it here. In Nebraska, pursuant to Neb. Rev. Stat. § 29-1809
(Reissue 2016), a “plea in abatement may be made when there
is a defect in the record which is shown by facts extrinsic
thereto.” A plea in abatement is used to challenge the suf-
ficiency of the evidence at a preliminary hearing; to resist a
challenge by a plea in abatement, the evidence received by
the committing magistrate need show only that a crime was
committed and that there is probable cause to believe that the
accused committed it. State v. Lasu, 278 Neb. 180, 768 N.W.2d
447 (2009). Thus, a plea in abatement challenging evidence
at a preliminary hearing has a purpose similar to a motion to
dismiss under § 29-1418(3) challenging a grand jury’s finding
of probable cause. Because the purposes of the two procedures
are similar, and because error in a ruling on a plea in abate-
ment is cured by a subsequent finding at trial of guilt beyond
a reasonable doubt which is supported by sufficient evidence,
see State v. Green, supra, we similarly hold that any error in
a ruling on a motion to dismiss under § 29-1418(3) based on
the sufficiency of evidence before a grand jury is cured by a
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subsequent finding at trial of guilt beyond a reasonable doubt
which is supported by sufficient evidence.
In the present case, the trial jury found Chauncey guilty
beyond a reasonable doubt of intentional child abuse resulting
in death. Chauncey does not dispute that there was sufficient
evidence to support the conviction. We therefore conclude that
error, if any, in the court’s ruling on the motion to dismiss for
lack of probable cause under § 29-1418(3) was cured by the
trial jury’s finding of guilt beyond a reasonable doubt. We
reject Chauncey’s first assignment of error.
2. Grand Jury Proceedings —Motion to Quash:
District Court Did Not Err When It Overruled
Chauncey’s Motion to Quash Indictment
Based on A lleged Irregularities and
Prosecutorial Misconduct in
Grand Jury Proceedings
Chauncey next claims that the district court erred when it
overruled his motion to quash the indictment. He argues that
the court erred when it rejected two of his arguments: (1) that
the appointment of the special prosecutor was not proper and
(2) that the special prosecutor gave the grand jury erroneous
advice regarding the applicable law and penalties. He con-
tends that these errors amounted to “irregularities and pros-
ecutorial misconduct.” Brief for appellant at 38. We conclude
that neither claim has merit and that the district court did not
err when it overruled the motion to quash.
As a preliminary matter, before addressing the merits of
each claim, we note that similar to its arguments regarding the
motion to dismiss based on the existence of probable cause,
the State contends that any errors in the grand jury proceed-
ings raised by the motion to quash were effectively cured or
rendered harmless by the trial jury’s finding of guilt beyond
a reasonable doubt. And, as a further preliminary matter, we
note that these issues were brought on by a motion to quash.
It has been observed that generally, a motion in the nature to
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dismiss is permitted in criminal cases in various forms, includ-
ing, inter alia, a motion to quash and a plea in abatement.
See State v. Nearhood, 2 Neb. Ct. App. 915, 518 N.W.2d 165
(1994). See, e.g., Neb. Rev. Stat. § 29-1808 (Reissue 2016)
and §§ 29-1418(4) and 29-1809. No question has been raised
regarding the form of Chauncey’s motion, and because of our
disposition, we proceed on the basis that the issues were prop-
erly before the court.
As explained below, we determine that the district court did
not err when it appointed a special prosecutor, nor was there
misconduct in the prosecutor’s legal advice to the grand jury.
Because there was nothing to cure, we need not consider the
State’s argument that the errors that were the subject of the
motion to quash were rendered harmless by the trial jury’s
finding of guilt beyond a reasonable doubt.
(a) Appointment of Special Prosecutor
As the court noted in its order overruling the motion to
quash, § 23-1205 provides that a district court may appoint
an acting county attorney in any investigation, appearance,
or trial “[d]ue to the absence, sickness, disability, or conflict
of interest of the county attorney and his or her deputies
. . . .” In this case, the court found a “disability or conflict”
under § 23-1205. In its order overruling Chauncey’s motion
to quash, the court reasoned that the county attorney’s office
had a conflict of interest under § 23-1205, because until the
petition for a grand jury investigation into Juliette’s death was
filed in July 2012, the county attorney’s office had declined to
prosecute anyone in the 4 years since her death. The inference
was that the county attorney did not have confidence in the
sufficiency of his evidence.
At the hearing on the motion to quash, the court received
evidence, including an affidavit offered by the State, prepared
by the person who was the county attorney at the time the
grand jury was convened. The county attorney stated, inter
alia, that he was aware that one of the primary organizers
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of the petition to call the grand jury had been vocal in her
dissatisfaction with his office regarding the investigation of
Juliette’s death. The appointment of a special prosecutor would
remove this perceived unfairness and promote confidence in
the judicial system. See State v. Kinkennon, 275 Neb. 570, 747
N.W.2d 437 (2008).
[7] The decision to appoint a special prosecutor is addressed
to the discretion of the trial court, and absent an abuse of dis-
cretion, such ruling will not be disturbed on appeal. See State
v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013). We deter-
mine that the district court did not abuse its discretion when
it found that the county attorney’s office had a disability or
conflict of interest as broadly understood under § 23-1205 and
appointed the special prosecutor. We therefore conclude that
the court did not err when it overruled the motion to quash the
indictment on such basis.
(b) Special Prosecutor’s Advice
to Grand Jury
Chauncey asserts that the special prosecutor incorrectly
advised the grand jury to review the 2012 version of § 28-707,
whereas the correct version of the statute was the 2008 version
in effect when the offense occurred. In its order overruling
the motion to quash, the district court noted that the charge in
the indictment regarding child abuse resulting in death used
language consistent with § 28-707 from the 2008 version. The
record also shows that the foreperson signed the indictment
containing the correct version of § 28-707, intentional child
abuse resulting in death.
Chauncey notes that the record of the grand jury proceed-
ing indicates that the special prosecutor provided the grand
jury with both the 2008 and the 2012 versions of § 28-707 and
commented thereon. Chauncey argues that it was error for the
special prosecutor to advise the grand jury to consult the 2012
version, because the alleged crime occurred in 2008 and any
amendments made after 2008 would not be applicable.
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As the court noted, the language in the indictment reflected
the correct language from the 2008 version, which provides in
relevant part as follows:
(1) A person commits child abuse if he or she know-
ingly, intentionally, or negligently causes or permits a
minor child to be:
....
(b) Cruelly confined or cruelly punished;
....
(6) Child abuse is a Class IB felony if the offense is
committed knowingly and intentionally and results in the
death of such child.
The indictment that was filed as a result of the grand jury
proceeding provided as follows with regard to the charge for
child abuse resulting in death:
COUNT I
Sec. 28-707(1)(b)
Penalty Sec. 28-707(6)
That DUSTIN CHAUNCEY on or about July 11, 2008,
then in Scotts Bluff County, Nebraska did knowingly or
intentionally cruelly punish a minor child, Juliette Geurts,
which resulted in the death of such child contrary to the
statutes of the State of Nebraska.
The charge followed the language of the statute and stated that
the crime charged was “committed knowingly or intention-
ally [and] resulted in the death of such child.” The indictment
did not include the word “negligently.” The indictment did
not specify the grading of the offense, but the reference to
“Penalty Sec. 28-707(6)” and the inclusion of the language
“knowingly or intentionally” and “resulted in the death of
such child” indicate that the offense was charged as a Class IB
felony under § 28-707(6) of the 2008 version.
Although the indictment followed the 2008 language of
§ 28-707(1)(b), Chauncey argues that amendments reflected in
the 2012 version—possibly relied on by the grand jury—could
have affected how the grand jury viewed the evidence and
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its determination of whether the evidence supported a charge
under the statute. Intentional child abuse resulting in death
remained a Class IB felony under both versions. However, the
penalty subsection (6) in the 2008 version had been moved to
subsection (8), and the new penalty subsection (6) addressed
negligent rather than knowing and intentional child abuse
resulting in death.
Chauncey argues that the grand jury’s having both versions
might have caused confusion, because although the grand jury
agreed to a charge with a penalty under § 28-707(6), some
jurors may have been referring to the 2008 version of pen-
alty subsection (6), and some may have been referring to the
2012 version of penalty subsection (6). Chauncey also notes
that the 2012 version of § 28-707 included language defining
“negligently” which was not included in the 2008 version,
and he contends that the special prosecutor gave the grand
jury a definition of “reckless” that did not follow the statu-
tory language.
Chauncey acknowledges that there is little precedent in this
state regarding challenges to an indictment based on alleged
irregularities in the grand jury proceedings, and he refers us
to the U.S. Supreme Court standard for review of alleged
irregularities, including prosecutorial misconduct in grand
jury proceedings applicable in federal courts. In Bank of Nova
Scotia v. United States, 487 U.S. 250, 254, 108 S. Ct. 2369,
101 L. Ed. 2d 228 (1988), the Court held that where dismissal
is sought for nonconstitutional error, “as a general matter,
a district court may not dismiss an indictment for errors in
the grand jury proceedings unless such errors prejudiced the
defendants.” The Court further stated that “[t]he prejudicial
inquiry must focus on whether any violations had an effect on
the grand jury’s decision to indict. If violations did substan-
tially influence this decision, or if there is grave doubt that
the decision to indict was free from such substantial influ-
ence, the violations cannot be deemed harmless.” Id., 487
U.S. at 263.
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For completeness, we note that according to the U.S.
Supreme Court in Bank of Nova Scotia, 487 U.S. at 257, a
presumption of prejudice will be allowed where “the structural
protections of the grand jury have been so compromised as to
render the proceedings fundamentally unfair.” The Court gave
as examples racial discrimination in the selection of grand
jurors, Vazquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88
L. Ed. 2d 598 (1986), and the exclusion of women as grand
jurors, Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261,
91 L. Ed. 2d 181 (1946). This presumption of prejudice is not
applicable to the instant challenge.
Under the standards from Bank of Nova Scotia, supra,
which apply to this case, we conclude that the district court
did not err when it rejected Chauncey’s claim of error related
to the special prosecutor’s conduct and advice. Despite the
potential for confusion regarding the different versions of
§ 28-707, we do not believe that such potential creates
grave doubt as to whether the grand jury agreed on the
offense on which it decided to indict Chauncey. The indict-
ment clearly charged Chauncey with “knowingly or intention-
ally” committing the enumerated acts rather than commit-
ting such acts negligently or recklessly. The language in the
indictment charging acts done “knowingly or intentionally”
make clear that the grand jury agreed on and referred to
“Penalty Sec. 28-707(6)” of the 2008 version. Furthermore,
because the indictment did not charge the crime as being
committed “negligently” or “recklessly,” advice regarding
the definition of those terms was not likely to have affected
the jury’s decision to charge the offense as having been com-
mitted “knowingly or intentionally.” Chauncey’s challenge
regarding the proper statute before the grand jury does not,
in our view, indicate that such occurrence substantially influ-
enced the grand jury’s decisions, nor was Chauncey preju-
diced thereby.
In sum, we conclude that the court did not err when it over-
ruled the motion to quash the indictment.
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3. District Court Did Not Err When It Overruled
Motion In Limine to Prohibit Evidence
R egarding DNA Testing
of Sperm Fraction
Chauncey next claims that the district court erred when it
overruled his motion in limine in which he sought to prohibit
the State from presenting evidence regarding DNA testing of
the sperm fraction found on Juliette’s shirt. He argues that
the probative value of the evidence was substantially out-
weighed by the danger of unfair prejudice, because the refer-
ence to sperm might cause the jury to think this case involved
the sexual assault of a child. We reject this assignment
of error.
As noted earlier in this opinion, the district court reserved
ruling on Chauncey’s pretrial motion in limine regarding DNA
evidence related to the sperm fraction until the trial. Before
the State’s DNA expert testified at trial, the court heard argu-
ments by the parties and allowed Chauncey to voir dire the
expert. Thereafter, the court found the DNA evidence rel-
evant, and as we read the court’s ruling, its probative value
outweighed the danger of prejudice. The court overruled the
motion in limine. The court found that the evidence was
relevant in part because it went to the question of “[e]xactly
when” the sample was deposited onto Juliette’s shirt. The
court stated that because Chauncey was not being charged
with sexual assault of a child, the court trusted that the jury
would focus on the elements of the crime being charged and
make its judgment based on the evidence rather than on specu-
lation or conjecture.
Chauncey contends the evidence should not have been
allowed, based on lack of probative value and the potential
for unfair prejudice. He argues the evidence lacked probative
value because the DNA expert could not establish when the
sample was transferred to the shirt, and he argues unfair preju-
dice because the mention of a sperm sample would inappropri-
ately cause the jurors to think of sexual assault.
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[8-11] Evidence is relevant if it tends in any degree to alter
the probability of a material fact. State v. Grant, 293 Neb.
163, 876 N.W.2d 639 (2016). Under Neb. Evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. State v. Grant, supra. Most, if
not all, evidence offered by a party is calculated to be preju-
dicial to the opposing party. State v. Oldson, 293 Neb. 718,
884 N.W.2d 10 (2016). Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis. Id.
Unfair prejudice speaks to the capacity of some concededly
relevant evidence to lure the fact finder into declaring guilt on
a ground different from proof specific to the offense charged,
commonly on an emotional basis. Id.
Chauncey contends that the district court “acquiesced the
403 balancing role to the jury.” Brief for appellant at 46.
We disagree. Chauncey’s argument misperceives the district
court’s reasoning, particularly the court’s statement that it
would trust the jury to focus on the crime being charged rather
than speculating about sexual assault. We read the court’s
comment not as having acquiesced the balancing to the jury,
but, instead, as reflecting that it had balanced probative value
against the danger of unfair prejudice before determining that
the evidence could be presented to the jury, which would be
expected to focus on the charged crime.
We further note in regard to both probative value and
unfair prejudice that the court’s ruling on the motion in limine
came after Cardwell had testified about Chauncey’s jailhouse
statements, including how Chauncey’s sperm may have got-
ten onto Juliette’s clothing. That testimony increased the
relevance of the DNA evidence as to both the identity of the
perpetrator and the timing of the crime. Cardwell’s testimony
preceding admission of the DNA evidence likely lessened the
danger of unfair prejudice because the jurors had an explana-
tion for how the sperm got onto Juliette’s clothing. The court
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did not abuse its discretion when it overruled the motion in
limine, and we reject this assignment of error.
4. Motions for Mistrial—District Court
Did Not A buse Its Discretion When It
Overruled Motions for Mistrial
Chauncey finally claims that the district court erred when
it overruled his motion for mistrial after the prosecutor men-
tioned during opening statements the testing of sperm found on
Juliette’s clothing and his motion for mistrial when the pros-
ecutor questioned Cardwell regarding Chauncey’s statements
explaining how his sperm might have gotten on Juliette’s
clothing. The bases for Chauncey’s argument are that the
State violated the court’s pretrial rulings and that the DNA
evidence was wrongly admitted. We reject Chauncey’s argu-
ment that the district court erred when it overruled his motions
for mistrial.
Prior to trial, the district court reserved ruling on
Chauncey’s motion in limine with regard to the sperm frac-
tion. At that time, the court ordered the State to notify the
court and the defense in advance of offering such evidence
in order to allow Chauncey to object and the court to rule on
the admissibility of the evidence. As noted in the immediately
preceding section of this opinion, the court eventually over-
ruled the motion in limine prior to the testimony of the State’s
DNA expert. However, as noted, on two occasions during the
trial prior to that ruling, Chauncey had objected and moved
for a mistrial.
[12] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. State v. Mitchell, 294 Neb. 832, 884 N.W.2d 730 (2016).
The defendant must prove that the alleged error actually preju-
diced him or her, rather than creating only the possibility of
prejudice. Id.
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(a) Opening Statement
Regarding Sperm
The prosecutor stated during opening statements that the
clothing Juliette was wearing was sent to the state laboratory
for testing and that “the lab found on the little undershirt some
sperm and [it] tested that sperm.” Chauncey objected at this
point, and the court instructed the jury to disregard the pros-
ecutor’s comments about sperm on the shirt. At the conclusion
of opening statements, Chauncey moved for a mistrial and
argued that the State had violated the court’s order when it
mentioned testing the sperm. The court overruled Chauncey’s
motion for mistrial, noting in part that the jury had been
advised to disregard the specific comments regarding sperm
and that the jury had generally been instructed that the com-
ments of counsel were not evidence.
[13] With regard to the prosecutor’s statement during open-
ing statements, the court advised the jury to disregard the
specific comments regarding sperm. Error cannot ordinarily
be predicated on the failure to grant a mistrial if an objection
or motion to strike the improper material is sustained and the
jury is admonished to disregard such material. Id. We believe
the court’s admonishment was sufficient and the overruling of
Chauncey’s motion for mistrial was not error.
(b) Cardwell’s Testimony
Regarding Sperm
The court overruled another motion for mistrial when the
State questioned Cardwell regarding jailhouse statements
Chauncey had made to Cardwell explaining how Chauncey’s
sperm might have gotten on Juliette’s clothing. The pros-
ecutor asked Cardwell, “[D]o you recall in any conversation
where the issue of semen or sperm was mentioned?” Chauncey
objected on the basis that the court had not yet ruled on his
motion in limine. The court excused the jury in order to hear
argument from the parties. In addition to objecting to the ques-
tioning, Chauncey moved for a mistrial. After argument, the
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court overruled Chauncey’s objection and his motion for mis-
trial. The State continued questioning Cardwell, who testified
that Chauncey said that his sperm would have been on Juliette
because he had been having intercourse with Charyse immedi-
ately before he picked up Juliette.
With regard to the questioning of Cardwell, we note that
when the court overruled the motion for mistrial, it also deter-
mined that Cardwell’s testimony was admissible in order to
establish foundation for the DNA testing evidence. The court
ultimately determined that the evidence regarding DNA test-
ing of the sperm fraction was admissible, and in the previous
section of this opinion, we concluded that the district court
did not abuse its discretion in that ruling. Because the DNA
evidence was ultimately determined admissible, Chauncey has
not shown that the State’s questioning of Cardwell regard-
ing the sperm prejudiced him. The overruling of Chauncey’s
motion for mistrial was not error.
VI. CONCLUSION
Having rejected Chauncey’s assignments of error, we affirm
his conviction and sentence.
A ffirmed.