State v. Smith

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
01/15/2016 12:05 PM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SMITH
Cite as 292 Neb. 434
State of Nebraska, appellee, v.
K elvin L. Smith, appellant.
___ N.W.2d ___
Filed January 15, 2016. No. S-14-769.
1. Trial: Evidence: Appeal and Error. An appellate court reviews a trial
court’s ruling on authentication for abuse of discretion.
2. Trial: Witnesses: Testimony: Appeal and Error. An appellate court
reviews a trial court’s allowance of leading questions for an abuse
of discretion.
3. 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.
4. 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.
5. ____: ____. When judicial discretion is not a factor, whether the under-
lying facts satisfy the legal rules governing the admissibility of such
evidence is a question of law, subject to de novo review.
6. Convictions: Evidence: Appeal and Error. When reviewing the suf-
ficiency of the evidence to sustain a criminal conviction, it is not the
province of an appellate court to resolve conflicts in the evidence, pass
on the credibility of witnesses, determine the plausibility of expla-
nations, or reweigh the evidence; such matters are for the finder of
fact. The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reason-
able doubt.
7. Constitutional Law: Due Process. The determination of whether the
procedures afforded an individual comport with constitutional require-
ments for procedural due process presents a question of law.
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8. Constitutional Law: Criminal Law: Jury Trials. Whether cumulative
error deprived a criminal defendant of his or her Sixth Amendment right
to a trial by an impartial jury presents a question of law to be reviewed
de novo.
9. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the court below.
10. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
11. Appeal and Error. Appellate review is limited to those errors specifi-
cally assigned as error in an appeal to a higher appellate court.
12. Trial: Evidence: Appeal and Error. An objection on the basis of insuf-
ficient foundation is a general objection, which requires the court to
engage in interpretation on appeal, rather than be apprised of the real
basis for the objection.
13. ____: ____: ____. A party may not normally complain on appeal for an
overruled foundation objection unless the grounds for the exclusion are
obvious without stating it.
14. Trial: Evidence. Whether there is sufficient foundation evidence for the
admission of physical evidence must necessarily be determined by the
trial court on a case-by-case basis.
15. Trial: Evidence: Appeal and Error. A trial court’s determination of
the admissibility of physical evidence will not ordinarily be overturned
except for an abuse of discretion.
16. Criminal Law: Trial: Witnesses. A trial court in a criminal case has a
large, though not unlimited, discretion in granting or refusing permission
to ask a witness a leading question.
17. Trial: Witnesses: Testimony: Appeal and Error. An appellate court
reviews a trial court’s allowance of leading questions for an abuse
of discretion.
18. Trial: Witnesses: Testimony. The concern with the use of leading ques-
tions during direct examination is that a witness already giving favorable
testimony to a party may testify to facts suggested to the witness, rather
than those personally known by the witness.
19. Evidence: Proof. A document is properly authenticated by evidence
sufficient to support a finding that the matter in question is what its
proponent claims.
20. Verdicts: Juries: Appeal and Error. In a harmless error review, an
appellate court looks at the evidence upon which the jury rested its
verdict; the inquiry is not whether in a trial that occurred without the
error a guilty verdict would surely have been rendered, but, rather,
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STATE v. SMITH
Cite as 292 Neb. 434
whether the guilty verdict rendered in the trial was surely unattributable
to the error.
21. Rules of Evidence: Witnesses: Testimony. To constitute a prior con-
sistent statement for purposes of Neb. Evid. R. 801(4)(a)(ii), Neb.
Rev. Stat. § 27-801(4)(a)(ii) (Reissue 2008), the out-of-court statement
must be consistent with the in-court testimony recently charged with
being fabricated.
22. ____: ____: ____. That witnesses’ memories conflict as to when, where,
or how statements were made may be relevant to the credibility of
the witnesses’ testimony, but it is not relevant for purposes of analyz-
ing whether an out-of-court statement is a prior consistent statement
under Neb. Evid. R. 801(4)(a)(ii), Neb. Rev. Stat. § 27-801(4)(a)(ii)
(Reissue 2008).
23. Appeal and Error. For an alleged error to be considered by an appel-
late court, an appellant must both assign and specifically argue an
alleged error.
24. ____. An argument that does little more than restate an assignment of
error does not support the assignment, and an appellate court will not
address it.
25. Criminal Law: Minors: Sexual Misconduct: Proof: Words and
Phrases. In order to show “erotic nudity” as defined in Neb. Rev.
Stat. § 28-1463.02 (Reissue 2008), the State must prove, first, that the
depiction at issue displays a human’s genitals or human’s pubic area or
female’s breast area, and second, that the depiction was created for the
purpose of real or simulated overt sexual gratification or sexual stimula-
tion of one or more of the persons involved.
26. Criminal Law: Minors: Sexual Misconduct: Photographs.
Determination of whether a defendant took pictures for purposes of
real or simulated overt sexual gratification or sexual stimulation should
include consideration of whether (1) the focal point of the visual depic-
tion is on a child’s genitalia or pubic area; (2) the setting of the visual
depiction is sexually suggestive; (3) the child is depicted in an unnatural
pose or in an inappropriate attire, considering the age of the child; (4)
the child is clothed; (5) the visual depiction suggests sexual coyness or
willingness to engage in sexual activity; and (6) the visual depiction is
intended or designed to elicit sexual response in the viewer.
27. ____: ____: ____: ____. In prosecutions under the Child Pornography
Prevention Act, the sexual nature of a photograph is not determined
solely from the subject of the photograph, but from the motives of the
persons generating it.
28. ____: ____: ____: ____. A defendant can be found guilty of creating or
possessing child pornography beyond a reasonable doubt even when the
actual depiction at issue is unavailable at trial.
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Cite as 292 Neb. 434
29. Circumstantial Evidence. Circumstantial evidence is not inherently
less probative than direct evidence.
30. Criminal Law: Sexual Misconduct: Photographs. Whether a photo-
graph was created for the purpose of sexual gratification or stimulation
must be determined, not only from the depiction, but from the motive of
the persons generating it.
31. Criminal Law: Sexual Misconduct: Circumstantial Evidence:
Photographs: Intent. A trier of fact may consider circumstantial evi-
dence of a defendant’s intent in determining whether a depiction was
created for overt sexual gratification or sexual stimulation.
32. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclo-
sure by the prosecution of material evidence favorable to the defendant,
requested by the defendant, violates due process, irrespective of the
good faith or bad faith of the prosecution. But due process is not vio-
lated where the evidence is disclosed during trial.
33. Criminal Law: Motions for Continuance: Evidence: Waiver. If a
continuance would have been a sufficient remedy for a belated disclo-
sure in violation of Neb. Rev. Stat. § 29-1912 (Reissue 2008), a defend­
ant who fails to request a continuance waives any rights he or she may
have had pursuant to § 29-1912.
34. Criminal Law: Prosecuting Attorneys: Witnesses: Indictments and
Informations: Time. Neb. Rev. Stat. § 29-1602 (Reissue 2008) gen-
erally requires the prosecution to endorse the names of all known
witnesses in the information at the time it is filed, but permits the
endorsement of additional witnesses up to and including 30 days prior
to trial.
35. Trial: Witnesses: Indictments and Informations: Time. A trial court,
in the exercise of its discretion, may permit additional witnesses to
be endorsed within the 30 days before trial and even after the trial
has begun, provided doing so does not prejudice the rights of the
defendant.
36. Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opinion.
37. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
38. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
Error. A party who fails to make a timely motion for mistrial based
on prosecutorial misconduct waives the right to assert on appeal that
the court erred in not declaring a mistrial due to such prosecuto-
rial misconduct.
39. Statutes: Intent. In construing a statute, a court must look at the statu-
tory objective to be accomplished, the problem to be remedied, or the
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purpose to be served, and then place on the statute a reasonable con-
struction which best achieves the purpose of the statute, rather than a
construction defeating the statutory purpose.
40. Criminal Law: Sexual Assault: Minors: Records: Proof. For purposes
of Neb. Rev. Stat. §§ 28-319.01 (Cum. Supp. 2014) and 28-320.01
(Reissue 2008), a duly authenticated copy of the former judgment and
commitment, from any court in which such judgment and commitment
was had, for any of such crimes formerly committed by the party so
charged, shall be competent and prima facie evidence of such former
judgment and commitment.
41. Rules of Evidence: Records: Proof. Copies of judicial records that
are certified by a deputy clerk for the clerk of the district court and
impressed with the court’s seal do not require extrinsic evidence of
authenticity for admission under Neb. Evid. R. 902, Neb. Rev. Stat.
§ 27-902 (Reissue 2008).
Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed and remanded for resentencing.
Thomas P. Strigenz, Sarpy County Public Defender, and
April L. O’Loughlin for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
McCormack, J.
I. NATURE OF CASE
Kelvin L. Smith was convicted in a jury trial of two counts
of first degree sexual assault of a child; three counts of third
degree sexual assault of a child; three counts of incest; three
counts of visual depiction of sexually explicit conduct; and one
count of child abuse. Three of the sexual assault charges were
charged as second offenses, which, pursuant to Neb. Rev. Stat.
§ 28-319.01(3) (Cum. Supp. 2014), enhanced Smith’s penalty
to a mandatory minimum sentence of 25 years in prison. In
total, Smith was sentenced to 41 to 110 years of imprisonment,
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Cite as 292 Neb. 434
35 of those years being “hard” years, for which there is no
possibility of parole. Smith appeals both his convictions and
sentences, assigning 12 errors.
II. BACKGROUND
Smith and Jennifer Smith met and began dating in April
2004. In late April or May, Smith moved into Jennifer’s apart-
ment in Council Bluffs, Iowa, with Jennifer and her two daugh-
ters, S.D. and A.L., who were 9 and 6 years old at the time.
Smith and Jennifer were married in June 2004. They conceived
a son, who was born in September 2010.
On August 6, 2013, Child Protective Services received a
child sexual abuse report with regard to S.D., A.L., and the
Smiths’ son. As a result of the report, a caseworker went to the
Smiths’ apartment to interview each family member. Based on
disclosures made by A.L., the case was turned over to a detec-
tive. On August 12, the detective questioned Smith, and then
placed him under arrest. On October 22, Smith was formally
charged with offenses of which he was later convicted.
S.D. and A.L. both testified at Smith’s trial that Smith
sexually assaulted them. Although they could not testify to
the exact dates for each of the alleged incidents, the girls
described their experiences in terms of where they were living
at the time. Thus, it becomes relevant that the family moved
to La Vista, Nebraska, in 2005 and to Bellevue, Nebraska,
in 2007.
1. S.D.
At trial, S.D., then 19 years old, testified that Smith began
sexually assaulting her when she was 10 years old and the
family was living in La Vista. She testified that the first inci-
dent occurred one day while her mother and sister were gone.
Smith called S.D. into his bedroom, grabbed her by the wrist
and took her clothes off despite her asking him to stop. S.D.
testified that Smith pulled her down to the bed, pulled down
his pants, got on top of her, spread her legs open, and put his
penis inside her. S.D. testified that incidents like the one she
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described occurred multiple times a month while they lived in
La Vista. S.D. said she never told her mother because Smith
told her not to and told her that it would upset her mother.
S.D. testified that the sexual assaults began to occur more
frequently after the family moved to Bellevue in 2007. She
testified that a couple of times a week, Smith would touch her
inappropriately or force her to have oral sex or intercourse
with him.
When S.D. was 12 or 13 years old, she began to go through
puberty and began to grow pubic hair. At trial, S.D. testified
that Smith told her she needed to start shaving because he
did not like her having hair on her pubic area. She said Smith
showed her how to shave; he used a razor on her legs and pubic
area without soap or other lubricant and cut her. Although S.D.
admitted she sometimes cut her wrists on purpose, S.D. testi-
fied that on another occasion, Smith had cut her on the inside
of her thighs with a box cutter blade because she did not shave
and was “disgusting and ugly.” At trial, Dr. Suzanne Haney
discussed photographs of S.D.’s thighs, which show scarring
consistent with small lacerations that have healed.
(a) Photographs
At trial, S.D. testified that Smith took nude photographs
of her on multiple occasions. At trial, S.D. was able to recall
specific details about an incident that occurred when she was
13 years old. When asked to describe that incident, S.D. said:
He took off my clothes and put me on the bed . . . .
....
[He] grabbed hold of my knees and put them in the air
and took a picture [of my vaginal area].
....
. . . There was another one where I was — I was on
my hands and knees, and I remember he put his hand on
the — on my back and pushed my butt up in the air and
took a picture like that.
....
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Cite as 292 Neb. 434
. . . There was two more. The other one was — I was
on my back, and it was from my neck down.
....
. . . I can’t remember the fourth one.
S.D. testified that she saw the pictures after they were
taken. She said that the photograph Smith took of her buttocks
showed her vaginal area. S.D. testified that Smith placed the
photographs into his photograph album (photo album), where
there were also nude photographs of S.D.’s mother.
A detective, Sarah Spizzirri, obtained Smith’s photo album
from Jennifer after Smith’s arrest. At the time Spizzirri obtained
the album, it did not contain any photographs of S.D. Instead,
there was an empty page where the photographs in question
were alleged to have been placed.
Smith’s photo album was the kind with peel-back-and-stick
contact sheets. At trial, Spizzirri testified about those types
of photo albums, and Smith objected on form and founda-
tion grounds throughout that testimony. Spizzirri said she was
old enough to remember those types of photo albums and
described how to insert a photograph into them. Spizzirri was
allowed to testify that a contact sheet that has never been lifted
is smooth and one that has been lifted is “all bubbled.” When
the State asked Spizzirri whether a blank page of Smith’s photo
album, where explicit photographs of S.D. had allegedly been,
was bubbled and appeared to have been used, Smith objected
again, and the court, believing the testimony had already been
adduced, sustained Smith’s objection on the grounds that the
question had been asked and answered.
(b) Prior Consistent Statements
S.D. testified that Smith had stopped sexually assaulting
her in 2008 when she started dating her first boyfriend, Collin
Ryan, whom she dated on and off for 4 years. S.D. testified
that one day, while she was babysitting with Ryan, she told
Ryan that Smith had touched her.
S.D. also testified that she had expressed to her best friend,
Kendra Dick, that she was being sexually assaulted. S.D.
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testified that she wrote a poem about it in a notebook that she
shared with Dick, sometime around their sophomore year of
high school. Without any hearsay objections from Smith, S.D.
explained that the poem “was about [her] being afraid to be
alone; and [she] was afraid that if [she] was alone, then he
would do it again to [her],” and that the poem “talked about
[her] hurting because someone kept hurting [her].”
S.D.’s testimony was partly corroborated by Ryan’s and
Dick’s statements at trial. Ryan testified that in December
2008, he drove S.D. home after a date, and that as he was
backing up to leave, S.D. came running back outside. Ryan
said that he went up to her to see what was wrong and that
S.D. started crying. Over Smith’s hearsay objections, Ryan tes-
tified that S.D. told him that she could not be there anymore,
because “he” touches her. Ryan said he understood it to be
Smith who was touching S.D., since no other males lived in
the house.
Dick testified that in junior high, she and S.D. had a secret
notebook in which they would write notes to each other and
pass back and forth between classes. Dick testified that S.D.
wrote a poem in the notebook, but Smith’s hearsay objections
were sustained, and Dick was not allowed to testify to the spe-
cific contents of the poem. Rather, Dick was allowed to testify
that the poem was significant to her and caused her to feel
scared for S.D. because “something wasn’t right.” When asked
if Dick’s understanding was that the poem was about Smith’s
raping S.D., Dick answered yes. Smith then objected on hear-
say grounds, and that objection was overruled.
2. A.L.
A.L., who was 16 years old at the time of trial, testified
that Smith began sexually assaulting her when she was 11
years old. She testified that the first time such an incident
occurred, Smith came to her room at night and lay on her
bed. A.L. testified that Smith took her pants and his clothes
off, opened her legs, and put his penis inside her for what
“felt like a long time.” A.L. testified that about a month
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later, Smith came to her room again, put his fingers inside
her, and performed oral sex on her. She testified that Smith
penetrated her with his penis only that one time, but that
Smith continued to penetrate her with his fingers every other
night for about a year. A.L. testified that Smith stopped sexu-
ally assaulting her sometime after she started her period and
Jennifer became pregnant.
(a) Prior Consistent Statement
Although A.L. did not tell her mother about Smith’s sexu-
ally assaulting her, A.L. testified that she wrote a letter she
hoped her mother would find and kept it in a box in her closet.
When asked at trial what the letter was about, A.L. said she
wrote about the time Smith penetrated her with his penis and
how scared she was. A.L. said that at the end of the letter, she
wrote, “[I]f this is my mom finding this, I’m sorry I didn’t
tell you.”
A.L. testified that sometime after Smith stopped sexually
assaulting her, she showed the letter to her friend, Natalie
James. A.L. said that James came over on a day when A.L. was
home by herself, and that A.L. went to her room, got the note,
and gave it to James. She testified that James read it and cried.
Smith did not object to any of A.L.’s statements about the letter
or what she told James.
To corroborate A.L.’s testimony, the State called James to
testify regarding the letter. James testified that rather than
A.L.’s giving the letter to James, A.L. read the letter to James.
Over Smith’s hearsay objections, James said the letter told the
story of how “one night [Smith] came into [A.L.’s] room, laid
in her bed, and then he raped her.” James did not remember
any message at the bottom of the letter.
(b) Medical Examination
and Expert Testimony
On the third day of trial, it came to light, through Smith’s
cross-examination of Spizzirri and Det. Steve Miller, that a
medical examination had been performed on A.L. Prior to
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that testimony, neither Smith nor the State was aware of the
medical examination. Miller, who was assigned to investigate
Smith’s case, received documentation of the examination from
a child advocacy center and placed it in his personal file; he
testified that he mistakenly failed to submit the documenta-
tion to the records division, where it would have become part
of the official case file.
The parties stipulated that documentation of A.L.’s medical
examination would be received into evidence without objec-
tion. The documentation, entered into evidence as exhibit 25,
reflected that A.L.’s hymen had “a continuous hymenal border
with a redundant hymenal surface,” meaning there was no dis-
ruption in the border or evidence of trauma on A.L.’s hymen.
Neither party requested a continuance based on the surprise
caused by the exhibit.
Prior to trial, the State was unaware of A.L.’s medical
examination, and thus did not disclose to Smith that it intended
to elicit expert testimony from Haney about the examination
or about the hymen’s ability to heal. Before trial, the State
expected that Haney would testify only about the photographs
she took of the scars on S.D.’s thighs. At trial, however,
Haney testified, not only about the scars on S.D.’s thighs,
but also that the hymen is able to heal after penile or digital
penetration. She testified that a physician cannot tell whether
a woman or female child is a virgin based on the presence or
absence of a hymen and that the fact exhibit 25 showed A.L.
had a normal genital examination did not discount her sexual
abuse disclosure.
Smith allegedly “had to scramble within 12 hours to find an
expert of his own to counter . . . Haney’s surprise opinion.”1
Smith called Dr. Sean McFadden, a medical doctor certified in
obstetrics and gynecology who did not have any recent expe-
rience treating victims of sexual abuse. At trial, McFadden
often provided lengthy and highly technical answers not nec-
essarily responsive to questions asked.
1
Brief for appellant at 33.
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From what can be gleaned from McFadden’s testimony, his
position appears to be that an 11-year-old girl has not yet had
an increase in the production of estrogen and that as a result,
her hymen is thinner and less elastic than it will be after she
goes through puberty. He testified that if an adult male pen-
etrated an 11-year-old girl’s vagina, there would likely be some
laceration of the hymen, that the damage would be increased if
the penetration was forced, and that A.L.’s medical examina-
tion was inconsistent with allegations that she was once pen-
etrated by Smith’s penis and digitally penetrated every other
night for a year.
McFadden testified that he disagreed with Haney’s testi-
mony that there would be no medical evidence of tearing of the
hymen. He said that, if injured, the hymen’s tissue will heal,
but it will not go back to its original state; instead, there will
be a “transection” where the tissue healed.
3. Conviction and Sentencing
At the conclusion of the trial, the jury found Smith guilty
on the charges described above. An enhancement hearing was
held, and the State offered, and the court accepted, exhibit 37
into evidence. Exhibit 37 was purported to be a prior convic-
tion of attempted first degree sexual assault. Three of the
sexual assault of a child charges were found to be second
offenses for purposes of § 28-319.01(3) and Neb. Rev. Stat.
§ 28-320.01(4) (Reissue 2008), which requires a defendant
convicted of sexual assault of a child, who has previously been
convicted of a similar sexual offense, to serve a mandatory
minimum of 25 years in prison. Prior to announcing the sen-
tences, the trial judge said:
As I read the case law, with respect to the three charges
that carry mandatory minimums, the Court must impose
consecutive sentences as to those three charges.
It would seem to the Court, even if that was not
required, that that would be appropriate given the time
frames.
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The Court has chosen to make some of the sentences
imposed concurrent to each other and some of the sen-
tences consecutive to each other.
Nothing can be concurrent with the mandatory mini-
mum sentences, . . . but based upon victim, time frame
of the offense and nature of the offense, the Court finds
that certain sentences should be imposed on a consecu-
tive basis and not a concurrent basis, in addition to the
consecutive basis for the sentences on the mandatory
minimums.
Smith was ultimately sentenced to 41 to 110 years in prison,
35 of those years being “hard” years, for which there is no
good time and no possibility of parole.
Additional facts relevant to our analysis of Smith’s assign-
ments of error will be set forth herein.
III. ASSIGNMENTS OF ERROR
Smith filed a lengthy brief containing many assignments of
error which have been consolidated, restated, and renumbered
as follows: (1) The trial court erred in allowing exhibits 4
and 6 to be admitted into evidence; (2) the trial court erred in
allowing exhibit 9 to be admitted into evidence; (3) the trial
court erred in allowing Spizzirri to testify about exhibit 7;
(4) the trial court erred in allowing the hearsay testimony of
Ryan, Dick, and James; (5) there was insufficient evidence for
Smith’s convictions; (6) the trial court erred in failing to order
a new trial after the medical report on A.L. was not timely
disclosed, in violation of Brady v. Maryland2 and the Nebraska
discovery rules; (7) the trial court erred in endorsing Haney
as a witness and allowing her to testify about exhibit 25; (8)
the trial court violated the cumulative error doctrine; (9) the
trial court erred in finding Smith’s prior conviction was prop-
erly authenticated and certified; (10) the trial court erred in
sentencing Smith to serve the mandatory minimum sentences
2
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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consecutively; and (11) the trial court erred in imposing exces-
sive sentences.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a trial court’s ruling on
authentication for abuse of discretion.3
[2] An appellate court reviews a trial court’s allowance of
leading questions for an abuse of discretion.4
[3-5] 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.5 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 discre-
tion.6 When judicial discretion is not a factor, whether the
underlying facts satisfy the legal rules governing the admis-
sibility of such evidence is a question of law, subject to de
novo review.7
[6] When reviewing the sufficiency of the evidence to sus-
tain a criminal conviction, it is not the province of this court
to resolve conflicts in the evidence, pass on the credibility
of witnesses, determine the plausibility of explanations, or
reweigh the evidence; such matters are for the finder of fact.8
The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
3
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
4
State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).
5
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
6
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015); State v. Stricklin,
290 Neb. 542, 861 N.W.2d 367 (2015); State v. Valverde, 286 Neb. 280,
835 N.W.2d 732 (2013); State v. Merchant, 285 Neb. 456, 827 N.W.2d 473
(2013); State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
7
State v. Draganescu, supra note 5.
8
See, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Epp,
supra note 3; State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
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of fact could have found the essential elements of the crime
beyond a reasonable doubt.9
[7] The determination of whether the procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law.10
[8] Whether cumulative error deprived a criminal defendant
of his or her Sixth Amendment right to a trial by an impartial
jury presents a question of law to be reviewed de novo.11
[9] Statutory interpretation is a question of law that an
appellate court resolves independently of the court below.12
[10] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed.13
V. ANALYSIS
We affirm all of Smith’s convictions as listed above. We
remand for resentencing in accordance with this opinion.
1. Exhibits 4 and 6
We first address Smith’s contention that the trial court
erred in allowing exhibits 4 and 6 to be admitted into
9
State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015); State v. Nave, 284
Neb. 477, 821 N.W.2d 723 (2012).
10
State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012); State v. Smith,
282 Neb. 720, 806 N.W.2d 383 (2011); State v. Boppre, 280 Neb. 774,
790 N.W.2d 417 (2010); State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733
(2009); State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
11
See, State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009); State v.
Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
12
State v. Becker, 282 Neb. 449, 804 N.W.2d 27 (2011).
13
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013); State v. Erickson,
281 Neb. 31, 793 N.W.2d 155 (2011); State v. Alford, 278 Neb. 818,
774 N.W.2d 394 (2009); State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589
(2007); State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
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evidence. His argument adds exhibit 5, though it was not
assigned as error.
Exhibits 4 through 6 are purported to be photographs of
the scars on S.D.’s thighs. The process of authentication for
each of the exhibits was similar. The State would start by ask-
ing S.D. if she recognized the exhibit, to which S.D. would
respond, “[t]hat’s me” or “[m]y leg.” The State would then
ask a leading question to more specifically identify what the
photograph portrayed. For example, the State asked S.D., “Is
that, particularly, your right leg . . . ?” and “[I]s that a picture
of your inner part of your leg?” S.D. affirmed each time. The
State then asked whether the exhibit “fairly and accurately
reflect the scars from the cutting that [Smith] inflicted on
you?” S.D. indicated that each exhibit did. Each time the
State offered one of those three exhibits into evidence, Smith
objected on form and foundation grounds. Smith’s objections
were overruled.
[11-13] We need not consider whether the trial court erred
in admitting exhibit 5, because appellate review is limited to
those errors specifically assigned as error in an appeal to a
higher appellate court.14 With regard to exhibits 4 and 6, Smith
offers three reasons why he believes there was not sufficient
foundation evidence for the exhibits’ admission. But Smith
objected to the exhibits’ admission only on form and founda-
tion grounds. A foundation objection is a general objection,
which requires the court to engage in interpretation on appeal,
rather than be apprised of the real basis for the objection.15
Thus, a party may not normally complain on appeal for an
overruled foundation objection unless the grounds for the
exclusion are obvious without stating it.16 Smith acknowledges
14
State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997).
15
See State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005).
16
State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005); State v. Davlin, 263
Neb. 283, 639 N.W.2d 631 (2002); State v. Baker, 245 Neb. 153, 511
N.W.2d 757 (1994).
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this, but argues that the grounds for the exclusion are obvious
from the record.
We acknowledge that in authenticating the exhibits, some of
the State’s questions were leading questions, which suggested
to S.D. the answer desired of her. Thus, we entertain Smith’s
argument that exhibits 4 and 6 were improperly identified
through leading questions and that as a result, there was not
sufficient foundation evidence for their admission.
[14,15] Whether there is sufficient foundation evidence
for the admission of physical evidence must necessarily be
determined by the trial court on a case-by-case basis.17 A trial
court’s determination of the admissibility of physical evi-
dence will not ordinarily be overturned except for an abuse of
discretion.18
[16,17] Our law is well settled that a trial court in a criminal
case has a large, though not unlimited, discretion in granting or
refusing permission to ask a witness a leading question.19 We
also review a trial court’s allowance of leading questions for an
abuse of discretion.20
[18] We find no abuse of discretion here. The concern with
the use of leading questions during direct examination is that
a witness already giving favorable testimony to a party may
testify to facts suggested to her, rather than those person-
ally known by her.21 Here, at the time the State first showed
S.D. exhibits 4 and 6, S.D. had already testified that Smith
had cut her legs. When asked to identify the exhibits, S.D.
17
State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007); State v.
Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005); State v. Tolliver,
268 Neb. 920, 689 N.W.2d 567 (2004); State v. Mather, 264 Neb. 182,
646 N.W.2d 605 (2002); State v. Carter, 255 Neb. 591, 586 N.W.2d 818
(1998).
18
State v. Jacobson, supra note 17.
19
State v. Hoffmeyer, 187 Neb. 701, 193 N.W.2d 760 (1972).
20
State v. Fleming, supra note 4.
21
Charles W. Ehrhardt & Stephanie J. Young, Using Leading Questions
During Direct Examination, 23 Fla. St. U. L. Rev. 401 (1995).
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immediately responded, “[t]hat’s me” or “[m]y leg.” The State
followed up with leading questions only to more specifically
identify the exhibits as photographs of S.D.’s legs showing
“the injuries or the scars, from the cutting” that S.D. had just
testified Smith had inflicted upon her. We therefore conclude
that the trial court did not abuse its discretion in permitting
the leading questions used during the State’s authentication of
exhibits 4 and 6.
[19] A document is properly authenticated by evidence suf-
ficient to support a finding that the matter in question is what
its proponent claims.22 In this case, the State claimed that the
exhibits were photographs of S.D.’s legs, and even if we ignore
the testimony adduced through the State’s leading questions,
S.D.’s testimony established that they were in fact photographs
of S.D.’s legs. Smith’s assignment of error with regard to
exhibits 4 and 6 is without merit.
2. Exhibit 9
We next address Smith’s argument that the court erred in
admitting exhibit 9 into evidence. Exhibit 9 is purported to
be a copy of Smith’s birth certificate issued by the State of
Mississippi. The document is signed by a state health officer
and certified to be a true and correct copy of the certificate
on file with the State of Mississippi. It contains a warning:
“A REPRODUCTION OF THIS DOCUMENT RENDERS
IT VOID AND INVALID. DO NOT ACCEPT UNLESS
EMBOSSED SEAL OF THE MISSISSIPPI STATE BOARD
OF HEALTH IS PRESENT.” The document contains the seal
of Mississippi, as well as a seal of the Mississippi Board of
Health. The parties disagree about whether the seal of the
Mississippi Board of Health is embossed. In addition to exhibit
9, the State established Smith’s birth date and age through two
other witnesses.
At trial, Smith objected to exhibit 9’s admission on authen-
tication and certification grounds. On appeal, Smith argues that
22
State v. Jacobson, supra note 17.
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the trial court erred in allowing exhibit 9 into evidence, claim-
ing that the requirements of rule 90223 were not met.
Rule 901,24 not cited by Smith, states the general rule
that authentication or identification is a condition prece-
dent to admissibility, and that such requirement is “satisfied
by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Rule 902 is the
“self-­authentication” statute; it dictates that documents meet-
ing certain requirements do not require extrinsic evidence of
authenticity.
Rule 902(1) provides in relevant part that “[a] document
bearing a seal purporting to be that of the United States, or of
any state . . . and a signature purporting to be an attestation
or execution” does not require extrinsic evidence of authentic-
ity. Exhibit 9 bears a seal purporting to be that of the State of
Mississippi and a signature certifying that the information con-
tained in the certificate of live birth is a true and correct copy
of the certificate on file with the State of Mississippi.
Smith argues that exhibit 9 does not meet rule 902(1),
because the document itself says that it should not be accepted
“unless embossed seal of the Mississippi State Board of Health
is present,” and he claims that the Board of Health seal is not
embossed. The State argues that the seal does not need to be
embossed, but claims that “a cursory tactile examination of the
document shows the [seal is] indeed embossed.”25 We do not
make a finding of fact as to whether the seal is embossed, and
we do not decide whether the lack of an embossed seal would
render the document noncompliant with rule 902(1).
[20] Even if we found that the document was admitted in
error, it would be harmless error. In a harmless error review,
an appellate court looks at the evidence upon which the jury
rested its verdict; the inquiry is not whether in a trial that
23
Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 2008).
24
Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008).
25
Brief for appellee at 23.
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occurred without the error a guilty verdict would surely have
been rendered, but, rather, whether the guilty verdict rendered
in the trial was surely unattributable to the error.26 The certifi-
cate of live birth serves only as proof of the defendant’s age.
Smith’s age, along with the victims’ ages, were pertinent to the
severity and punishment of Smith’s crimes of sexual assault of
a child.27 Evidence of Smith’s date of birth was also offered in
the form of testimony from at least two witnesses, including
Smith’s wife. Smith did not object to that testimony and did
not present any contradicting testimony. Thus, the jury could
have found Smith’s age even without exhibit 9. We therefore
conclude that any error in admitting exhibit 9 would be harm-
less error.
3. Spizzirri’s Testimony
on P hoto A lbums
Smith also argues that Spizzirri’s testimony on the photo
albums should not have been admitted. First, Smith argues
that Spizzirri should not have been allowed to give “opinion
testimony” about whether or not a contact sheet on the photo
album was “all bubbled” or had been lifted up, because the
State did not establish that she was an expert on contact sheets.
Second, Smith claims that Spizzirri’s testimony was improper
bolstering of S.D.’s credibility. Both of these arguments are
without merit.
(a) Opinion Testimony
Rule 70128 allows a witness not testifying as an expert to
provide “those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a clear
26
State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011); State v. Hudson,
279 Neb. 6, 775 N.W.2d 429 (2009); State v. Pischel, 277 Neb. 412, 762
N.W.2d 595 (2009); State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008);
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
27
See Neb. Rev. Stat. § 28-319 (Reissue 2008).
28
Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2008).
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understanding of his testimony or the determination of a fact
in issue.”
Spizzirri testified that she had “personal experience with
[that] type of a photo album,” with “peeling away the clear
sheet” and “putting a photo onto the sticky backing.” She testi-
fied that in the past, when she “peeled back the clear paper and
tried to . . . rearrange or arrange photographs,” the clear sheet
“never goes down quite right. It’s bubbled.”
We note that Spizzirri was not actually permitted to testify
on direct examination that she believed photographs had been
removed from the photo album, though the State’s questions
certainly created that inference. Even so, such inference was
rationally based on Spizzirri’s experiences with peel-back-and-
stick photo albums, and Spizzirri’s testimony was helpful to
the jury, who may not have had experience with peel-back-and-
stick photo albums. We conclude that Spizzirri’s testimony was
proper lay witness testimony under rule 701.
(b) Bolstering
Smith also claims that Spizzirri’s testimony regarding the
photo album vouched for the character of S.D., in violation of
Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 2008).
We do not see, and Smith does not explain, how this statute
applies to Spizzirri’s testimony.
Rule 608 provides:
(1) The credibility of a witness may be attacked or sup-
ported by evidence in the form of reputation or opinion,
but subject to [certain] limitations . . . .
(2) Specific instances of the conduct of a witness, for
the purpose of attacking or supporting his credibility,
other than conviction of crime as provided in section
27-609, may not be proved by extrinsic evidence.
Subsection (1) does not apply, because the credibility
of S.D. was neither attacked nor supported by Spizzirri’s
testimony in the form of reputation or opinion testimony.
Subsection (2) does not apply, because Spizzirri’s testimony
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about the photo album was not extrinsic evidence of specific
instances of S.D.’s conduct.
It seems Smith is construing rule 608 as prohibiting a party
from eliciting testimony from one witness to corroborate the
testimony of another. There is no such rule. Smith’s argument
is without merit. We conclude that Spizzirri’s testimony about
the photo album was properly admitted.
4. Statements by Ryan,
Dick, and James
Smith argues that the trial court erred in allowing the hear-
say testimony of Ryan, Dick, and James as prior consistent
statements.
We first note that this issue was properly preserved for
appeal by Smith’s hearsay objections. The State argues that
Smith waived this issue because he did not object on the
specific basis that the statements were not prior consistent
statements. The State claims that “there are so many compo-
nents to the hearsay rule, and so many exceptions to it that
a generic objection of ‘hearsay’ does not fit the ‘specific
grounds’ requirement.”29 The State has cherry-picked cases
State v. Cave30 and State v. Duncan31 for statements in support
of its argument. But those cases did not involve hearsay objec-
tions and are easily distinguished.
We have never held that an objecting party must anticipate
and specify every hearsay exclusion or exception potentially
applicable in order to preserve his or her objection. We con-
clude that Smith’s hearsay objection at trial properly preserved
the issue for appeal; thus, we address the merits of Smith’s
arguments.
First, we review the general hearsay rule and “prior con-
sistent statement” exclusion. Hearsay is “a statement, other
29
Brief for appellee at 8.
30
State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).
31
State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
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than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted[.]”32 Hearsay is not admissible at trial except as pro-
vided by the Nebraska Evidence Rules.33
Rule 801(4)(a)(ii), often referred to as the “prior consistent
statement” exclusion, provides that a statement is not hearsay if
“[t]he declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement
is . . . consistent with his testimony and is offered to rebut an
express or implied charge against him of recent fabrication or
improper influence or motive.”
The court explicitly allowed Ryan’s testimony of S.D.’s
out-of-court statement and James’ testimony of A.L.’s out-of-
court statement into evidence as prior consistent statements.
Dick’s statement that she understood the poem to be about rape
was not included in that finding. The record does not show
under which hearsay exclusion or exception Dick’s testimony
was allowed, but Smith’s hearsay objections were neverthe-
less overruled.
Smith concedes that S.D. and A.L. were at trial and subject
to cross-examination. Smith also concedes that he recently
charged S.D. and A.L. with fabricating their allegations against
him. Nevertheless, he argues that certain testimony of Ryan,
Dick, and James should not have been admissible per rule
801(4)(a)(ii) because it was not consistent with the testimony
of S.D. and A.L. at trial.
[21] The main problem with Smith’s prior-consistent-­
statement analysis is that he compares for consistency the
testimony of Ryan, Dick, and James with the testimony of
S.D. and A.L. regarding the context in which the out-of-
court statements were made. Smith should instead compare
the out-of-court statements made by S.D. and A.L. with the
32
Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008).
33
Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008).
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in-court statements that Smith charged S.D. and A.L. with
recently fabricating.34
For example, with regard to Ryan’s testimony, Smith is
distracted by the witnesses’ inconsistent testimony about the
location and timing of the conversation at issue. Ryan tes-
tified that S.D. made the statement “he touches me” after
Ryan dropped S.D. off after a date. In contrast, S.D. testified
that the conversation occurred while she was babysitting with
Ryan. Smith contends this discrepancy makes Ryan’s testi-
mony inadmissible.
But applying rule 801(4)(a)(ii), S.D.’s statement to Ryan
was not hearsay. S.D. testified at trial and was subject to cross-
examination concerning her statement to Ryan, “he touches
me.” That statement was consistent with S.D.’s testimony at
trial and was offered to rebut Smith’s charge that S.D. recently
fabricated her sexual assault allegations against Smith.
With respect to James’ testimony, Smith focuses on James’
and A.L.’s conflicting accounts of who read A.L.’s letter.
James testified that A.L. read the letter to her, and A.L. testi-
fied that James read the letter to herself. But we must compare
A.L.’s out-of-court statement contained within the letter with
the in-court statement that Smith claims A.L. fabricated. The
out-of-court statement was that Smith came into A.L.’s room
and raped her, and that statement was consistent with A.L.’s
in-court testimony of the same.
[22] The fact that the witnesses’ memories conflict as to
when, where, or how statements were made may be relevant to
the credibility of the witnesses’ testimony, but it is not relevant
for purposes of analyzing whether an out-of-court statement
is a prior consistent statement under rule 801(4)(a)(ii). We
conclude that the statements of S.D. and A.L., testified to by
34
See, State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994), abrogated,
State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996); State v. Tlamka, 244
Neb. 670, 508 N.W.2d 846 (1993), abrogated, State v. Morris, supra note
34; State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985), abrogated,
State v. Morris, supra note 34.
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Ryan and James respectively, were prior consistent statements
properly admitted at trial.
As for Dick’s statement that she understood S.D.’s poem to
be about Smith’s raping S.D., we first acknowledge that such
testimony would be hearsay if not for rule 801(4)(a)(ii). In
essence, Dick testified to S.D.’s out-of-court written assertion
that Smith raped her.
Smith argues that this assertion was not a prior consistent
statement, because, he claims, the poem was the declarant,
was not produced at trial, and thus was not subject to cross-
examination. Smith also makes this argument with respect to
A.L.’s letter. Both arguments are without merit.
Rule 801(2) states that a “declarant is a person who makes a
statement,” and rule 801(1) says that a “statement is (a) an oral
or written assertion or (b) nonverbal conduct of a person, if it is
intended by him as an assertion.” Dick’s challenged testimony
involves statements contained within the poem. S.D. wrote
the poem. As the poem’s author, S.D. is clearly the declar-
ant. Likewise, A.L. was clearly the declarant of the statements
contained within the letter she wrote. Both S.D. and A.L. were
indisputably at trial and subject to cross-examination. Smith’s
arguments that rule 801(4)(a)(ii) does not apply because the
documents were the declarants and not available for cross-
examination is without merit.
Smith also argues that Dick’s testimony about the poem (that
Dick understood it to be about Smith’s raping S.D.) was incon-
sistent with S.D.’s in-court testimony, because S.D. did not use
the word “rape” when S.D. described her poem. Instead, S.D.
said the poem was very general and was about S.D.’s “hurting
because someone kept hurting [her].” Although we think S.D.’s
statement to Dick that Smith raped her is consistent with S.D.’s
statement that someone hurt her, these two statements are not
the ones rule 801(4)(a)(ii) requires us to compare.
To comport with rule 801(4)(a)(ii), the out-of-court statement
must be consistent with the in-court testimony recently charged
with being fabricated. Smith charged S.D. with fabricating
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her testimony that Smith sexually assaulted her. S.D.’s out-
of-court statement that Smith raped her is consistent with her
in-court testimony.
5. Sufficiency of Evidence
[23,24] We turn to Smith’s next assignment of error that
there was insufficient evidence to sustain the verdict. Smith
assigns as error and briefly mentions in his argument that there
was insufficient evidence as to all counts. But to be consid-
ered by an appellate court, an appellant must both assign and
specifically argue an alleged error.35 An argument that does
little more than restate an assignment of error does not support
the assignment, and an appellate court will not address it.36
Because Smith’s argument addresses only the sufficiency of the
evidence with respect to counts 10 through 12, we need only
consider the evidence with regard to those charges.
(a) Counts 10 Through 12
Counts 10 through 12 are charges based on the three photo-
graphs that Smith allegedly took of S.D, which S.D. described
at trial—one count per photograph. Since the photographs were
not available at trial and do not have corresponding exhibit
numbers, we will refer to the photographs as photographs “1,”
“2,” and “3” for purposes of our analysis.
[25] All three counts involve charges that Smith violated
Neb. Rev. Stat. § 28-1463.03(1) (Reissue 2008), which makes
it “unlawful for a person to knowingly make, publish, direct,
create, provide, or in any manner generate any visual depic-
tion of sexually explicit conduct which has a child as one
of its participants or portrayed observers.” Neb. Rev. Stat.
§ 28-1463.02(5)(e) (Reissue 2008) defines “[s]exually explicit
conduct,” in relevant part, as “erotic nudity,” which means “the
35
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
36
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); State v. Pereira,
284 Neb. 982, 824 N.W.2d 706 (2013); State v. Mata, 275 Neb. 1, 745
N.W.2d 229 (2008).
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display of the human male or female genitals or pubic area,
the human female breasts, or the developing breast area of the
human female child, for the purpose of real or simulated overt
sexual gratification or sexual stimulation of one or more of the
persons involved.”37 This means that in order to show “erotic
nudity” as defined in § 28-1463.02, the State must prove, first,
that the depiction displayed a human’s genitals or a human’s
pubic area or female’s breast area, and second, that the depic-
tion was created for the purpose of real or simulated overt
sexual gratification or sexual stimulation.
[26,27] To determine whether photographs were taken for
the purpose of real or simulated overt sexual gratification or
sexual simulation, we consider the following factors from
United States v. Dost38:
1) whether the focal point of the visual depiction is on
the child’s genitalia or pubic area;
2) whether the setting of the visual depiction is sexu-
ally suggestive, i.e., in a place or pose generally associ-
ated with sexual activity;
3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or
nude;
5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed
to elicit a sexual response in the viewer.
A visual depiction need not involve all these factors to be
considered “erotic nudity.”39 Nor are the factors exclusive.
We have said that the sexual nature of a photograph is not
37
§ 28-1463.02(3).
38
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), affirmed
sub nom. U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and affirmed 813
F.2d 1231 (9th Cir. 1987). See, also, State v. Saulsbury, 243 Neb. 227, 498
N.W.2d 338 (1993).
39
See, § 28-1463.02; United States v. Dost, supra note 38.
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d­ etermined solely from the subject of the photograph, but also
from the motives of the persons generating it.40
(b) Prosecuting Child Pornography
Cases Without Depiction
at Issue in Evidence
Smith claims it was impossible for the jury to find beyond
a reasonable doubt that the photographs Smith allegedly took
of S.D. depicted erotic nudity, because the photographs were
“not in existence” at trial.41 Smith’s argument appears to be
that, without actual photographs, the jury could not determine
whether a minor’s private parts were displayed in the pho-
tographs and could not apply the Dost factors to determine
whether they were taken for the purpose of real or simulated
overt sexual gratification or sexual simulation.
The State argues in contrast that a defendant can be found
guilty of creating or possessing child pornography beyond a
reasonable doubt even without the actual depictions in evi-
dence. In support of its position, the State cites three federal
cases, all of which rely on U.S. v. Villard.42
In Villard, the defendant filed a motion for judgment of
acquittal after a jury convicted him of violating the federal
exploitation of children statute, see 18 U.S.C. § 2251 (2012).
In the lower court’s order granting the motion, it indicated that
it may be possible to prove beyond a reasonable doubt that the
defendant violated § 2251, even without the actual depiction at
issue.43 Nevertheless, the lower court found that the evidence
against the defendant was insufficient to prove that the unavail-
able photographs at issue were illegal child pornography in
violation of § 2251.
40
See State v. Saulsbury, supra note 38.
41
Brief for appellant at 53.
42
U.S. v. Villard, 885 F.2d 117 (3d Cir. 1989).
43
See U.S. v. Villard, 700 F. Supp. 803 (D. N.J. 1988), affirmed U.S. v.
Villard, supra note 42.
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The circumstantial evidence in Villard included a surveil-
lance tape, which showed the defendant and another man
looking at the depiction at issue and commenting on it. At one
point, the other man said to the defendant, “‘I wonder if he’s
asleep. He’s three quarters hard. Maybe he sleeps in the buff
like that. He’s pretty hairy, though, God but not just much
under the arm.’”44 The other man also testified at trial that the
pictures were all closeups of a boy who was approximately 14
or 15 years old, which showed the boy from his head to his
knees. The man said that the boy’s knees were bent slightly
upward and that he was “‘semi erect.’”45
After the jury in Villard convicted the defendant based on
the evidence above, the lower court granted the defendant’s
motion for judgment of acquittal. On appeal, the Third Circuit
was able to find only two of the Dost factors with any cer-
tainty.46 It concluded that the evidence was insufficient and
affirmed the district court’s grant of judgment of acquittal. One
judge dissented, because she felt that more deference should
have been given to the jury’s determination and that the major-
ity was not viewing the evidence in the light most favorable to
the government.
[28,29] We find it clear from the reasoning in Villard and
similar cases that a defendant can be found guilty of cre-
ating or possessing child pornography beyond a reasonable
doubt even when the actual depiction at issue is unavailable
at trial. After all, we have often said that circumstantial evi-
dence is not inherently less probative than direct evidence.47
And, although courts have recognized that proving a child
44
Id. at 806.
45
Id. at 807.
46
U.S. v. Villard, supra note 42.
47
State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009); State v. Leibhart,
266 Neb. 133, 662 N.W.2d 618 (2003); State v. Miner, 265 Neb. 778,
659 N.W.2d 331 (2003); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620
(2001); State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
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p­ ornography case may be considerably more difficult without
the actual depiction,48 we find no case in which the court says
it is impossible. Smith does not cite to any.
(c) Merits of Smith’s Assignment
The question we must answer is whether, viewing the evi-
dence in a light most favorable to the State, any rational trier
of fact could have found that Smith created a depiction of
“erotic nudity” involving a child, in violation of § 28-1463.02.
This requires a two-step analysis.49 First, we must determine
whether any rational trier of fact could have found that the
photographs at issue displayed “human male or female genitals
or pubic area, the human female breasts, or the developing
breast area of the human female child.”50 If so, we proceed
to the second step, which is to determine whether a rational
trier of fact could have found that the depictions were cre-
ated “for the purpose of real or simulated overt sexual grati-
fication or sexual stimulation of one or more of the persons
involved.”51 To answer this second question, we refer to the
factors from Dost.
S.D. testified that when she was 13 years old, Smith took off
her clothes, put her on the bed, and took photographs of her.
For one photograph, Smith grabbed S.D.’s knees, put them in
the air, and took a picture of her vaginal area (photograph 1).
Another photograph was of S.D. on her hands and knees with
her “butt up in the air” (photograph 2). S.D. testified that her
vaginal area was visible in photograph 2. S.D. said a third pho-
tograph was taken of her from her neck down while she was
on her back (photograph 3). S.D. did not say that photograph
3 displayed her vaginal area. S.D. testified that Smith showed
48
See, U.S. v. Villard, supra note 42; People v. Wayman, 379 Ill. App. 3d
1043, 885 N.E.2d 416, 319 Ill. Dec. 145 (2008).
49
See State v. Saulsbury, supra note 38; § 28-1463.02.
50
§ 28-1463.02(3).
51
Id.
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her the photographs and that the photographs reflected what
she had described Smith took of her.
(i) Display of Private Area
Based on S.D.’s testimony, we conclude that a rational trier
of fact could find that the photographs displayed S.D.’s genital
area. S.D. testified as to the contents of the photographs. With
respect to photographs 1 and 2, S.D. testified that they dis-
played her vaginal area.
Although S.D. did not specifically describe the individual
body parts depicted in photograph 3 the way she did with
respect to photographs 1 and 2, we conclude that a rational
jury could infer from S.D.’s testimony that at least her breasts,
and possibly her genitals or pubic area, were depicted in photo-
graph 3. This reasonable inference is supported by S.D.’s testi-
mony that Smith took off her clothes and took a photograph of
her from her neck down; that at the time Smith took the photo-
graphs of S.D., he had a history of sexually assaulting her and
continued to do so after the photographs were taken; and that
Smith placed the photograph into his photo album alongside
sexually explicit photographs of S.D.’s mother.
(ii) Purpose of Sexual Stimulation
or Gratification
We also conclude that a rational trier of fact could find that
the photographs were created for the purpose of sexual gratifi-
cation or sexual stimulation.
[30,31] We consider the Dost factors outlined above, which
are primarily helpful in determining from the depiction whether
it was created for sexual gratification or sexual stimulation.
But we have also held that whether the photograph was created
for the purpose of sexual gratification or stimulation must be
determined, not only from the depiction, but from the motive
of the persons generating it.52 Thus, a trier of fact may consider
circumstantial evidence of a defendant’s intent in determining
52
See State v. Saulsbury, supra note 38.
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whether a depiction was created for overt sexual gratification
or sexual stimulation.53
For example, the jury could consider the context in which
the photographs were alleged to have been taken.54 Here,
Smith took the photographs during the time he was forcing
S.D. to have sexual intercourse and oral sex with him. The
jury may have also considered S.D.’s testimony that Smith
placed S.D.’s photographs in the photo album along with nude
photographs of Jennifer, which Smith described as “adult-
oriented pictures.”
Additionally, the photographs meet many of the Dost fac-
tors. Photographs 1 and 2 meet, at least, factors 2 through 4
and 6. Both photographs were taken while S.D. was lying on
the bed, a place generally associated with sexual activity.55
S.D.’s attire and poses in those photographs were unnatural
for a 13-year-old girl and suggest a willingness to engage in
sexual activity. S.D. was nude and on her hands and knees
with her “butt up in the air” in one photograph, and on her
back with her knees up in the air in the other. And, based on
the context of Smith’s repeated sexual assaults, the photograph
was clearly designed to elicit a sexual response in the viewer,
Smith. Photograph 3 meets, at least, Dost factors 4 and 6. The
photograph depicted S.D. nude and was intended to elicit a
sexual response in Smith.
Viewing the evidence in the light most favorable to the
State, we conclude that a rational jury could find beyond a
reasonable doubt that Smith took the photographs for the pur-
pose of his own overt sexual gratification or sexual stimulation
in violation of § 28-1463.03. Finding both parts of the “erotic
nudity” analysis met, we affirm Smith’s convictions on counts
10 through 12.
53
Id.
54
See id. See, also, U.S. v. Rivera, 546 F.3d 245 (2d Cir. 2008); U.S. v.
Vanderwal, 533 Fed. Appx. 498 (6th Cir. 2013).
55
See United States v. Dost, supra note 38.
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6. Brady v. Maryland and Neb. R ev. Stat.
§ 29-1912 (Cum. Supp. 2014)
Next, Smith asserts that the trial court erred in failing to
order a new trial, as to all counts, after the medical report on
A.L. was not timely disclosed, which Smith alleges was in
violation of Brady v. Maryland56 and the Nebraska discov-
ery rules.
[32] Under Brady, the nondisclosure by the prosecution of
material evidence favorable to the defendant, requested by the
defendant, violates due process, irrespective of the good faith
or bad faith of the prosecution.57 But Brady is not violated
where the evidence is disclosed during trial.58 Here, the parties
became aware of the medical examination on the third day of
trial. Because the medical examination was disclosed during
the trial, we conclude that Smith’s right to due process was not
violated by the timing of the disclosure.
[33] However, our review is not complete. In Nebraska,
discovery in criminal cases is also governed by statute, and
we have said that § 29-1912 exacts more than the constitu-
tional minimum.59 Nevertheless, if a continuance would have
been a sufficient remedy for a belated disclosure in viola-
tion of § 29-1912, a defendant who fails to request a con-
tinuance waives any rights he or she may have had pursuant
to § 29-1912.60
We do not determine whether the timing of the disclosure
here violated § 29-1912, because we find that Smith waived
his rights under that statute when he failed to request a
56
Brady v. Maryland, supra note 2.
57
Id.
58
State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on
denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999) (citing U.S. v.
Gonzales, 90 F.3d 1363 (8th Cir. 1996)).
59
State v. Lotter, supra note 58; State v. Kula, 252 Neb. 471, 562 N.W.2d
717 (1997).
60
See State v. Lotter, supra note 58.
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continuance. Smith’s main complaint is that, had exhibit 25
been disclosed sooner, Smith “would have been able to bet-
ter prepare for the cross examinations of both [A.L.] and . . .
Haney as well as aid in the preparation of . . . McFadden.”61
Because a continuance would have cured the prejudice Smith
alleges and Smith failed to request a continuance, we con-
clude that he waived any rights he may have had pursuant
to § 29-1912.
7. H aney’s Testimony R egarding
Exhibit 25
Smith makes several arguments that Haney’s testimony about
exhibit 25 should not have been admitted. But his arguments
overlap and are scattered. Thus, in this section, we address
Smith’s complaints about Haney as we understand them, to the
extent such issue has not already been addressed.
(a) Haney’s Endorsement
One of Smith’s complaints is that the trial court erred in
endorsing Haney as a witness 3 months before the trial began.
On February 24, 2014, the State moved to endorse additional
witnesses, including Haney. On March 3, a hearing was held,
and Smith’s counsel objected to the State’s motion on the
grounds that it was the State’s sixth change to the complaint,
trial was scheduled to occur on March 18, and Smith’s coun-
sel did not know in what capacity Haney would be testifying.
The court granted the State’s motion, requiring the State to
submit an affidavit documenting discovery materials provided
to Smith related to Haney. In its order, the court stated, “[I]f
[Smith] needs additional time to conduct further discovery,
a continuance may be requested.” Smith availed himself of
that option and waived his right to a speedy trial. Trial began
June 3.
[34,35] Neb. Rev. Stat. § 29-1602 (Reissue 2008) generally
requires the prosecution to endorse the names of all known
61
Brief for appellant at 37.
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witnesses in the information at the time it is filed, but permits
the endorsement of additional witnesses up to and including 30
days prior to trial. Additionally, we have said that a trial court,
in the exercise of its discretion, may permit additional wit-
nesses to be endorsed within the 30 days before trial and even
after the trial has begun, provided doing so does not prejudice
the rights of the defendant.62
The trial court offered and granted Smith a continuance. The
trial began on June 3, 2014, which made the State’s motion to
endorse additional witnesses more than 90 days prior to trial.
We conclude that Smith was not prejudiced as a result of the
endorsement, and accordingly, the trial court did not err in
endorsing Haney.
Smith seems to think that the trial court’s endorsement
of Haney was somehow related to the sudden emergence of
exhibit 25 at trial and somehow caused Haney’s unanticipated
testimony that exhibit 25 did not exonerate Smith. However, it
is clear from the record that exhibit 25 did not come to surface
until the third day of trial, because Miller inadvertently kept it
in his personal file. Thus, at the time of Haney’s endorsement,
neither the court nor the State anticipated that Haney would
testify about exhibit 25. Smith’s argument is without merit.
(b) Daubert v. Merrell Dow
Pharamaceuticals, Inc.
Smith also claims that the trial court erred in allowing
Haney to provide an expert opinion about exhibit 25, because it
did not require the articles on which Haney based her opinion
to be vetted under the standards set forth in Daubert v. Merrell
Dow Pharmaceuticals, Inc.63
[36] Under Daubert and Schafersman v. Agland Coop,64
the trial court acts as a gatekeeper to ensure the evidentiary
62
State v. Mecum, 225 Neb. 293, 404 N.W.2d 431 (1987).
63
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
64
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
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r­ elevance and reliability of an expert’s opinion. This gatekeep-
ing function entails a preliminary assessment of whether the
reasoning or methodology underlying the testimony is valid
and whether that reasoning or methodology properly can be
applied to the facts in issue.65
But to sufficiently call specialized knowledge into question
under Daubert and Schafersman is to object with enough speci-
ficity so that the court understands what is being challenged.66
The initial task falls on the party opposing expert testimony to
sufficiently call into question the reliability of some aspect of
the anticipated testimony.67
Normally, a challenge to the admissibility of evidence
under Daubert and Schafersman should take the form of a
concise pretrial motion.68 But we recognize this was not an
option for Smith, because he was not aware prior to trial
that Haney would testify about exhibit 25. Nevertheless, we
have said that the pretrial motion should identify, in terms
of the Daubert and Schafersman factors, what is believed
to be lacking with respect to the validity and reliability of
the evidence.69
Smith, in his brief on appeal, does not identify any par-
ticular factor he deems to be lacking, but asserts only that the
trial court did not “determine if the studies were tested [or] if
they were valid or if they had general acceptance within the
relevant scientific community.”70
65
State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009); State v. Edwards, 278
Neb. 55, 767 N.W.2d 784 (2009); State v. Schreiner, 276 Neb. 393, 754
N.W.2d 742 (2008); State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542
(2007), abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010).
66
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
67
Id.
68
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
69
Id.
70
Brief for appellant at 39.
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[37] Moreover, although Smith claims the articles that
Haney relied on in forming her opinion should have been
subjected to Daubert standards, his true grievance concerns
Haney’s opinion that a normal anal/genital examination neither
confirms nor excludes the possibility of sexual abuse. When
Haney testified to that opinion at trial, Smith did not object.
Failure to make a timely objection waives the right to assert
prejudicial error on appeal.71 We conclude that Smith did not
properly preserve this issue for appeal.
8. Cumulative Error Doctrine
In Wamsley v. State,72 we recognized the doctrine of cumula-
tive error in the context of a criminal jury trial. We explained
that although one or more trial errors might not, standing
alone, constitute prejudicial error, their cumulative effect may
be to deprive the defendant of his constitutional right to a pub-
lic trial by an impartial jury.
Smith claims the trial court committed “copious errors
including those aforementioned.”73 We have already deter-
mined that the errors assigned by Smith are either meritless
or inconsequential. Smith did not assign, but adds to his
­cumulative-error allegations, only that the prosecution improp-
erly gave S.D. “gas money” and improperly met with S.D. two
or three times without providing Smith with reports.
[38] But a party who fails to make a timely motion for
mistrial based on prosecutorial misconduct waives the right to
assert on appeal that the court erred in not declaring a mistrial
due to such prosecutorial misconduct.74 Smith did not make a
timely motion for mistrial based on prosecutorial misconduct.
71
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013); State v. Nadeem, 284
Neb. 513, 822 N.W.2d 372 (2012); State v. Kibbe, supra note 6.
72
Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).
73
Brief for appellant at 59.
74
State v. Stricklin, supra note 6; State v. Robinson, 271 Neb. 698, 715
N.W.2d 531 (2006); State v. Lotter, supra note 58; State v. Wilson, 252
Neb. 637, 564 N.W.2d 241 (1997).
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We therefore conclude that Smith waived his right to assert that
issue on appeal.
Smith’s argument that cumulative error deprived him of
his right to a fair trial is without merit. Although we avoided
the question of whether Smith’s birth certificate was prop-
erly authenticated, we determined that, regardless of error,
its admission would be harmless. We determined that all of
Smith’s other arguments concerning trial errors are without
merit. Thus, there are not multiple trial errors to aggregate.
9. Enhancement
We turn lastly to sentencing issues, beginning with Smith’s
assignment of error that the trial court erred in finding Smith’s
prior conviction was properly authenticated and certified for
purposes of enhancing his sentences.
Smith’s sexual assault of a child crimes were charged in
the information as enhancements, to the effect that, if a prior
similar conviction was proved, Smith would receive enhanced
sentences for the sexual assault crimes of which he was con-
victed. Smith was convicted of three counts of third degree and
two counts of first degree sexual assault of a child. At Smith’s
enhancement hearing, the State offered exhibit 37, which was
purported to be Smith’s prior conviction for attempted first
degree assault. Exhibit 37 contains a signature and certification
on the last page.
Smith argues that the trial court erred in finding that exhibit
37 was properly authenticated and certified for purposes of
enhancement, taking the position that a seal of authenticity
should be on every page of the document.
Smith is correct that neither § 28-319.01 nor § 28-320.01
provides any guidance as to what is required to prove a prior
conviction. In contrast, for purposes of the habitual criminal
statute, Neb. Rev. Stat. § 29-2222 (Reissue 2008) provides
that “a duly authenticated copy of the former judgment and
commitment, from any court in which such judgment and com-
mitment was had, for any of such crimes formerly committed
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by the party so charged, shall be competent and prima facie
evidence of such former judgment and commitment.”
[39] In construing a statute, a court must look at the statu-
tory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a
reasonable construction which best achieves the purpose of
the statute, rather than a construction defeating the statutory
purpose.75 We see no reason why the proof required of prior
conviction for purposes of §§ 28-319.01 or 28-320.01 should
be any different than the proof required under § 29-2222 for
the habitual criminal statute.
[40] Accordingly, we hold that for purposes of §§ 28-319.01
and 28-320.01, a duly authenticated copy of the former judg-
ment and commitment, from any court in which such judg-
ment and commitment was had, for any of such crimes
formerly committed by the party so charged, shall be compe-
tent and prima facie evidence of such former judgment and
commitment.
[41] Exhibit 37 is a self-authenticating document. Copies
of judicial records that are certified by a deputy clerk for the
clerk of the district court and impressed with the court’s seal
do not require extrinsic evidence of authenticity for admission
under rule 902.76 Exhibit 37 is a copy of Smith’s record con-
cerning his attempted first degree sexual assault conviction. It
is certified by a deputy clerk for the Douglas County District
Court and bears the court’s seal. Page 10, which is the order
sentencing Smith for his conviction of attempted first degree
sexual assault, is file stamped and separately authenticated
by the clerk of the court. We conclude that exhibit 37 was a
self-authenticating document, which was prima facie evidence
of Smith’s previous attempted first degree assault conviction.
Therefore, Smith’s argument is without merit.
75
State v. Rathjen, 266 Neb. 62, 662 N.W.2d 591 (2003).
76
§ 27-902; State v. Hall, supra note 16.
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10. Sentences
Smith argues that his case should be remanded for new sen-
tencing because the trial court abused its discretion in imposing
Smith’s sentences, which were based on the court’s erroneous
impression that the counts with mandatory minimum sentences
needed to be consecutive to all other counts.
Smith is correct that his sentencing was imposed by the trial
court under a mistake of law. In imposing Smith’s sentences,
the trial judge said that he understood the case law to require
him to impose the sentences carrying mandatory minimum
sentences consecutively to the sentences for the other counts.
It appears the trial court relied on a statement in State v.
Castillas77: “Mandatory minimum sentences cannot be served
concurrently. A defendant convicted of multiple counts each
carrying a mandatory minimum sentence must serve the sen-
tence on each count consecutively.” We clarified this statement
in State v. Berney,78 when we said:
We were not speaking of enhancements under the habitual
criminal statute, but of those specific crimes that required
a mandatory minimum sentence to be served consecu-
tively to other sentences imposed.
There is a distinction between a conviction for a crime
that requires both a mandatory minimum sentence and
mandates consecutive sentences, and the enhancement of
the penalty for a crime because the defendant is found
to be a habitual criminal. In the former, the mandatory
minimum sentence must be served consecutively to any
other sentence imposed, because the statute for that crime
requires it. In the latter, the law does not require the
enhanced penalty to be served consecutively to any other
sentence imposed. The sentence is left to the discretion of
the court.
77
State v. Castillas, 285 Neb. 174, 191, 826 N.W.2d 255, 268 (2013),
disapproved, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
78
State v. Berney, 288 Neb. 377, 382-83, 847 N.W.2d 732, 736 (2014).
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The question is whether the trial court’s mistake of law
amounted to an abuse of discretion in imposing Smith’s sen-
tences when the judge expressly stated that “even if [con-
secutive imposition of mandatory minimum sentences] was
not required, . . . that would be appropriate given the time
frames.” The issue is unique, and we are unaware of any case
law on point.
Nevertheless, we are concerned that the court’s imposition
of Smith’s sentences on the convictions carrying mandatory
minimum sentences may have seemed appropriate to the court
because such sentences were ones thought to be required. This
is not to say that the exact same sentences imposed with a
full understanding of the law would be an abuse of discretion.
Rather, we want to ensure that the court actually exercised its
discretion and did not simply impose sentences that it thought
were required. We therefore remand the cause for resentenc-
ing and do not reach Smith’s argument that his sentences
were excessive.
VI. CONCLUSION
For the foregoing reasons, we affirm Smith’s convictions.
We remand the cause for resentencing in accordance with
this opinion.
A ffirmed and remanded for resentencing.