NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Sarpy County: Max Kelch, Judge.
Christopher Perrone, of Perrone Law, for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
Sievers, Pirtle, and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
William D. Schmale appeals from the order of the district court for Sarpy County convicting him of third degree sexual assault of a child, child abuse, and third degree sexual assault. On appeal, Schmale challenges the receipt of certain evidence, the court's failure to determine the admissibility of prior bad acts evidence before trial, and the court's refusal to grant a mistrial. Schmale also alleges he received ineffective assistance of counsel.
We conclude that the challenged evidence was relevant and therefore properly admitted, because it tended to prove the existence of a fact of consequence. Because Schmale did not object to any testimony on the ground that it was prior bad acts evidence, that issue was not properly preserved for appeal. The trial court did not abuse its discretion in refusing to grant a mistrial, because there was other evidence corroborating the substance of the question to which Schmale objected. Finally, we conclude that Schmale's trial counsel was not ineffective on several of the grounds he claims, but that the record is insufficient to address the remaining claims. Accordingly, we affirm.
Schmale was charged with third degree sexual assault of a child, child abuse, and third degree sexual assault. The victim in this case is his daughter, H.S., born in November 1990. H.S. and her mother moved in with Schmale when H.S. was 2 years old. H.S.' mother and Schmale married in 1994, and Schmale adopted H.S. when she was 5 years old.
At trial, H.S. testified that the first time Schmale touched her breasts and vagina, she was 13 years old. Around this same time, Schmale would walk around the house without pants or underwear on and expose himself to H.S. He would also make H.S. sleep in his bed, and on one occasion, he asked her to get under the sheets with him while he was naked and hold him while he slept. H.S. described other similar behavior from Schmale, such as asking her to grab his penis on one occasion, reaching under her shirt and unhooking her bra nearly every day, and sometimes reaching around the front of her shirt and touching her breasts. She testified that beginning when she was in eighth grade, Schmale asked her to tilt her head when she kissed him and would get upset if she just gave him a "quick peck on the mouth, " asking her to hold her lips to his for a longer period of time.
H.S. explained that there were times when she was getting ready for school in the morning, and Schmale would come in her room, sit on her bed, and refuse to leave when she needed to change clothes. She would ask him to leave, but he would refuse, so she had to turn her back to him and face her closet to get dressed. Schmale would also ask her what underwear she was wearing before she went to school. When she purchased new bras and underwear, he would ask her to model them for him. Schmale also purchased underwear for H.S., including a pair that said "'who's your daddy'" on the back.
H.S. described a particular incident that occurred when she was a junior in high school. Schmale had been wrestling with her, which she explained meant that Schmale would touch her inner thighs toward her vagina, touch her breasts, put his hands in her underwear, and sometimes pull her pants down. In order to get away from him, she told him she was going to take a shower. As she was getting ready to take a shower, she heard the telephone ring, and when she walked back out to answer the telephone, she saw that Schmale had ejaculated while sitting on the couch and had semen on his stomach.
H.S. testified that she did not tell anyone about the abuse from Schmale because she was embarrassed and did not know who to tell or whether anyone would believe her. When she was in high school, she eventually told a friend and a teacher.
H.S.' friend testified at trial that H.S. told her about the abuse. She also described a time she was at H.S.' house and saw Schmale rubbing his hand on H.S.' upper thigh and rubbing her back under her shirt. H.S.' teacher also testified at trial. She stated that H.S. told her that Schmale expected her to do all the things that a wife was supposed to do and that it was disgusting to H.S. Around the time H.S. made this statement, H.S.' teacher noticed changes in H.S.' behavior and testified that H.S. seemed very depressed, very withdrawn, and very emotional. H.S.' teacher testified that H.S. would cry almost every day.
H.S. eventually graduated from high school and moved out of the house to attend college. In September 2009, H.S. went to see a therapist, Christine Wiley, after she witnessed her roommate being sexually assaulted. She disclosed the abuse from Schmale to Wiley. Wiley testified at trial that she saw H.S. for 10 sessions between September and November 2009. Wiley is a licensed mental health practitioner and has worked with approximately 100 victims of sexual abuse or sexual assault. She testified that out of those 100 victims, the majority did not report the abuse or assault right away.
Wiley reported Schmale's abuse of H.S. to police. An investigator with the Sarpy County sheriff's office contacted H.S. after receiving the report of the abuse. During the course of his investigation, the investigator asked H.S. if she would be willing to make a telephone call to Schmale and record it. H.S. agreed and recorded telephone conversations she had with Schmale on October 19 and 23, 2009. During the conversations, Schmale denied doing anything wrong or purposely doing anything to H.S. and blamed H.S.' allegations on the fact they were playing around. But he apologized to H.S. for hurting her.
H.S.' mother testified at trial that during the time period at issue in this case, 2003 through 2009, she was suffering from depression, posttraumatic stress disorder, anxiety, panic disorder, and bipolar disorder. As a result of the medications she was taking, she slept a lot and was bedridden for much of the time. She testified that she did not remember H.S.' telling her that Schmale had molested her, but that as soon as she found out about the abuse in October 2009, she moved out of the house. H.S.' mother also described a conversation she had with Schmale in July 2010, in which he told her that he wished H.S. would drop the case and that if he went to jail, he knew people who would "take care of" H.S. H.S.' mother interpreted these statements as a threat to harm H.S.
Schmale testified in his own behalf. He denied ever sexually molesting H.S. and said that he would never do anything to hurt her. He explained that he sustained a work-related injury to his neck and shoulder in 1992 and has been unable to work since then. He testified that he cannot feel with his hands very well since the injury and may have accidentally touched H.S.' breast with his hand because he could not feel what he was touching. He admitted that he asked H.S. to model underwear for him and that she did so at his direction. He also admitted that he bought her underwear that said "'who's your daddy'" on the back.
Ultimately, the jury found Schmale guilty of all three crimes. Schmale timely appeals.
III. ASSIGNMENTS OF ERROR
Schmale alleges the district court (1) abused its discretion by admitting irrelevant, prejudicial, impermissible character, and prior bad acts evidence; (2) committed plain error by failing to require the State to prove prior bad acts evidence as admissible prior to introduction to the jury; and (3) abused its discretion by failing to grant a mistrial after ...