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State v. Fessler

Court of Appeals of Nebraska

June 4, 2013

State of Nebraska, appellee,
v.
Jeffrey S. Fessler, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Holt County: Mark D. Kozisek, Judge.

Ronald E. Temple, of Fitzgerald, Vetter & Temple, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

Sievers, Pirtle, and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

I. INTRODUCTION

Jeffrey S. Fessler challenges his conviction for first degree sexual assault on a child. On appeal, he argues that (1) the trial court erred in admitting evidence of other sexual assaults, (2) the trial court erred in failing to provide a sufficient limiting instruction of witness testimony regarding other sexual assaults, (3) the prosecutor committed misconduct by asking the jurors to place themselves in the role of the victims, and (4) his counsel did not effectively assist him. We affirm the conviction.

II. BACKGROUND

Fessler is the father of twin girls, S.F. and P.F., who were born in May 2001. He and his wife divorced when the girls were very young, and Fessler was awarded parenting time every other weekend.

During the Christmas holidays in 2009, S.F. informed her cousins that Fessler made her perform oral sex on him. One of the cousins eventually told his mother about the disclosure, and she informed the twins' grandparents of his remarks. The grandparents reported the information to a child abuse hotline.

1. Interviews and Investigation

On March 30, 2010, Kelli Lowe from the Northeast Nebraska Child Advocacy Center (CAC) interviewed S.F. and P.F. During that interview, S.F. disclosed sexual abuse, but P.F. did not. The same day, the Holt County Attorney filed an information charging Fessler with two counts of first degree sexual assault on a child. The information was amended twice in order to narrow the date of the assaults to the time period of March 1 through 31, 2010.

Subsequently, the grandparents arranged for S.F. and P.F. to speak with a pastor. After speaking with the pastor, P.F. returned to the CAC for a second interview with Lowe, at which time she disclosed sexual abuse.

2. Pretrial Motions and Hearings

Fessler filed several pretrial motions, including a motion to sever the counts, which the State "confessed." The State proceeded first on the charges for sexual assault of S.F., and this appeal deals solely with the alleged errors that occurred in connection with those charges.

In March 2011, Fessler filed a motion for disclosure of the intention to use evidence of other sexual assaults pursuant to Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012). The State "confessed" Fessler's motion, and a hearing was set.

At that hearing, Fessler argued that the court should exclude any evidence of sexual assaults against S.F. outside the date range alleged in the information, March 1 through 31, 2010. Fessler also argued that the court should exclude testimony P.F. might provide about sexual assaults Fessler allegedly inflicted upon her. During the hearing, both S.F. and P.F. testified that Fessler sexually abused them. S.F. and P.F. both stated that Fessler made them perform oral sex on him. S.F. also testified that Fessler touched her vagina. Fessler testified at the hearing, but did not discuss whether or not the sexual assaults occurred.

Based on the testimony, the trial court found "clear and convincing evidence that other sexual assaults occurred." The court also found that the probative value of the testimony substantially outweighed its prejudicial effect. The court deemed evidence of other sexual assaults admissible to any issue on which they were relevant.

Fessler also requested a Daubert hearing to determine whether the State's witnesses could present evidence of "child sexual abuse accommodation syndrome, " "grooming, " and "delayed disclosure [explanatory] testimony." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court considered the request as a motion in limine and denied the motion with respect to Lowe, the CAC interviewer. The State "confessed" the motion with respect to three other potential witnesses.

Immediately prior to trial, Fessler moved for the State either to designate a "fresh complaint witness" or to prevent witnesses from testifying about statements S.F. and P.F. made in reporting the sexual assaults to them. A "fresh complaint witness" is the first person a sexual assault victim informs of the assault. The court denied Fessler's motion and informed his counsel that he would need to make timely hearsay objections to this testimony at trial if he felt it should be excluded.

3. Trial Testimony

(a) S.F.'s Trial Testimony

At trial, S.F. testified that Fessler is her father and that when she was very young, her parents divorced. She stated that Fessler was awarded parenting time every other weekend.

S.F. testified that she told her cousins that Fessler makes her "suck his penis" when she stays with him. Fessler did not object to this statement at trial. She also testified that what she told her cousins was true and that it happened every time she went to visit Fessler since she was 3 or 4 years old. S.F. explained that Fessler made P.F. perform oral sex on him as well. S.F. provided a detailed account of the sexual ...


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