In re Interest of Vance B.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF VANCE B.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF VANCE B., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
VANCE B., APPELLANT.
Filed July 28, 2020. No. A-19-877.
Appeal from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge.
Affirmed.
Jessica R. Meyers, Deputy Scotts Bluff County Public Defender, for appellant.
Paul W. Snyder, Deputy Scotts Bluff County Attorney, for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Vance B. appeals from an order of the county court for Scotts Bluff County, sitting as a
juvenile court, adjudicating him as a juvenile within the meaning of Neb. Rev. Stat. § 43-247(2)
(Reissue 2016) and finding beyond a reasonable doubt that he committed the crime of first degree
sexual assault, forcible, under Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2016). On appeal, Vance
challenges the court’s determination that the juvenile victim was competent to testify. We affirm.
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BACKGROUND
On April 8, 2019, the State filed a juvenile court petition to adjudicate Vance as a juvenile
within the meaning of § 43-247(2) and alleged that he committed the crime of first degree sexual
assault, forcible, under § 28-319(1)(a). The petition identified that Vance was a juvenile under the
age of 18 and asserted that, on or about June 1, 2016, he had subjected another person to sexual
penetration without consent. The State identified Vance’s date of birth as October 1, 2004.
Vance’s initial appearance was on April 29, 2019. At that time, the court advised him of
his rights and explained the possible dispositions. The court also appointed counsel to represent
Vance in the matter.
On August 22, 2019, a contested adjudication was held. The State moved to amend the
complaint to reflect that the offense was committed on or about June 1 through July 31, 2016,
which the court granted over Vance’s objection. The State elicited testimony from two witnesses,
and Vance testified in his own behalf and elicited testimony from two additional witnesses. Four
exhibits were admitted. We will confine our discussion of the evidence to that which is relevant to
the question of the juvenile victim’s competency to testify.
The State called the juvenile victim, I.A., to testify, and the court conducted a brief colloquy
before swearing her in and allowing her to testify. The court asked I.A. to state her name, age, and
the name of the school she attended. She provided the court with her nickname, said that she was
7 years old, and identified “Bayard” as where she went to school. She told the court that there were
13 children in her class. I.A. also stated that her mother brought her to court, and she provided her
mother’s first name. The court discussed with I.A. the difference between a truth and a lie:
THE COURT: Okay. So if I were to tell a friend of mine that you went to Scottsbluff
to school, would that be a truth or a lie?
[I.A.]: The truth.
THE COURT: Where do you go to school?
[I.A.]: I go to school in Bayard.
THE COURT: But what if I said you went to Scottsbluff? Would I be telling the
truth?
[I.A.]: No.
THE COURT: What would that be?
[I.A.]: A lie.
The court then asked I.A. what her favorite color was--“pink”--and whether it would be a truth or
a lie if the court told someone else that her favorite color was brown. I.A. identified that statement
as a lie, and she told the court that she would tell the truth when she was asked questions. The
court then placed I.A. under oath, asking her, “[D]o you promise to tell me the truth to the questions
asked today? . . . And you promise not to tell a lie to the questions asked today?” I.A. responded
affirmatively to both questions.
On direct examination, I.A. again stated that she was 7 years old. She described living in a
trailer house with her mother, two sisters, and two brothers. I.A. said that she knew Vance because
his father “used to stay with [them] a little bit because he used to babysit [them].” She described
that Vance and his father lived in a house that was near a trailer house where they kept “some old
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stuff that they don’t use anymore.” She said that she occasionally stayed the night there. I.A. stated,
“[Vance] took me to the trailer across the house, and I didn’t know what he was doing until he did
it to me.” She said that no one else was in the trailer when they went there. When asked to describe
what happened, I.A. said,
Well, he said we - he has a piece of candy for me, but it wasn’t a piece of candy. . . . It was
some - it wasn’t - it was part of him. It was, like, the boy part. . . . He tricked me and saying
that he had a piece of candy. So he said to close my eyes and open my mouth, and I did.
And so he - instead he put his boy part in my mouth.
I.A. said that she ran out of the trailer.
The State asked I.A., “[I]n regards to his boy part, are you referring to a penis?” She
answered, “Yes.” Vance objected on the basis of foundation, which objection the court overruled.
The State then handed I.A. a “picture of a kid” and asked her to circle in red the area where Vance’s
boy part was located. That picture was admitted as exhibit 1 without objection. The State then
provided I.A. with another picture and asked her to circle in green where “Vance stuck his boy
part” on her. She noted that she drew the circle a bit too large as it included the nose, and she said,
“[h]e never put it over by my nose.” That picture was admitted as exhibit 2 without objection.
I.A. testified that she felt “scared and sad” after she ran away from Vance. She also said
that she did not tell anyone about what had happened because she “was too scared.” She said that
she feared that “everyone [was] going to be angry” and that she would get in trouble for going to
the trailer with Vance. When the State asked I.A. whether all the events she described had occurred
in Scotts Bluff County, the court sustained Vance’s objection based on foundation.
During cross-examination, I.A. recited in order the months January through August but
said that she did not know any other months. She identified what time it was based on the clock in
the courtroom. I.A. testified that she first told people who were at her school about the incident,
not her mother or father. She said that the people at school were asking her about fighting that was
going on in her home. I.A. testified that the incident occurred before she went to kindergarten and
that she thought that she was 4 or 5 years old at the time it occurred. Vance offered a videotape of
I.A.’s interview at Capstone, which was admitted as exhibit 3 without objection.
On August 26, 2019, the court entered its order finding beyond a reasonable doubt that
Vance had committed the crime of first degree sexual assault as alleged in the petition as amended.
The court noted that it had reviewed exhibit 3, the videotaped interview of I.A. conducted at
Capstone, which was offered by Vance. Additionally, the court specifically found “the State’s
witness (victim) to be very credible.” The court scheduled disposition for approximately 1 month
later and ordered that a presentence investigation and sex offender assessment be conducted.
Vance now appeals.
ASSIGNMENTS OF ERROR
Vance assigns that the court erred in finding that the juvenile victim was competent to
testify.
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STANDARD OF REVIEW
Whether a child witness should be permitted to testify is committed to the discretion of the
trial court. In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005). The question
of competency of a child witness lies within the discretion of the trial court, and that determination
will not be disturbed in the absence of an abuse of discretion. State v. Earl, 252 Neb. 127, 560
N.W.2d 491 (1997).
ANALYSIS
Vance argues that the court erred in finding that the 7-year-old victim, I.A., was competent
to testify during the contested adjudication. However, Vance never objected to her being called as
a witness or to challenge her competency and only objected twice during the State’s direct
examination. Vance objected when I.A. was asked whether she was referring to Vance’s penis
when she said “boy part,” which objection the court overruled, and objected again when she was
asked whether all the events had occurred in Scotts Bluff County, which objection the court
sustained. Moreover, Vance offered the videotaped interview of I.A. conducted at Capstone, which
was admitted into evidence and which matched the content of her testimony.
Failure to make a timely objection waives the right to assert prejudicial error on appeal.
Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 N.W.2d 329 (2020). If, when
inadmissible evidence is offered, the party against whom such evidence is offered consents to its
introduction or fails to object or to insist upon a ruling on an objection to the introduction of the
evidence and otherwise fails to raise the question as to its admissibility, he is considered to have
waived whatever objection he may have had thereto, and the evidence is in the record for
consideration the same as other evidence. State v. Howell, 26 Neb. Ct. App. 842, 924 N.W.2d 349
(2019).
Because Vance failed to object to I.A. being called as a witness or to the testimony she
offered, her competency to testify cannot now form the basis of error on appeal. We further note
that Vance not only failed to object to her testifying, but he effectively endorsed her testimony by
offering into evidence a videotape of her interview at Capstone, the content of which was
essentially the same as her live testimony. Assigning error to I.A.’s competency to testify is
disingenuous and fails as a matter of law.
Additionally, we note that an appellate court may, at its option, notice plain error. State v.
Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020). Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which prejudicially affects a substantial
right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id. We
find no plain error in the court’s determination that I.A. was competent to testify at trial. It inquired
into her understanding of truth and lies and established her intent to testify truthfully and
accurately. We therefore affirm the district court’s decision.
CONCLUSION
Based on the foregoing, we find no error in the district court’s finding that I.A. was
competent to testify in the contested adjudication.
AFFIRMED.
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