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State v. Kelly

Court of Appeals of Nebraska

June 25, 2013

State of Nebraska, appellee,
v.
William Joseph Kelly, appellant

1. Sexual Assault: Words and Phrases. A person commits first degree sexual assault if he or she subjects another person to sexual penetration without the consent of the victim.

2. ___: ___. Sexual penetration includes sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical or nonhealth purposes.

3. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.

4. Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

5. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

6. Criminal Law: Juries: Appeal and Error. An appellate court's standard of review for criminal cases requires substantial deference to the factual findings made by the jury.

7. Sexual Assault: Parent and Child. A person commits incest if he or she knowingly engages in sexual penetration with any person who falls within the degrees of consanguinity set forth in Neb. Rev. Stat. § 28-702 (Reissue 2008).

8. ___: ___. Neb. Rev. Stat. § 28-702 (Reissue 2008) includes a parent engaging in sexual penetration with his or her child. 9. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

10. 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.

11. Rules of Evidence: Other Acts. Before admitting evidence of the accused's commission of another offense or offenses of sexual assault under Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012), the court shall conduct a hearing outside the presence of any jury. At the hearing, the rules of evidence shall apply and the court shall apply a balancing under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), and admit the evidence unless the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing, the court may consider any relevant factor such as (1) the probability that the other offense occurred, (2) the proximity in time and intervening [20 Neb.App. 872] circumstances of the other offenses, and (3) the similarity of the other acts to the crime charged.

12. ___: ___. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

13. ___: ___. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2012), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime. This rule includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

14. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

15. Effectiveness of Counsel: Waiver: Appeal and Error. Although Nebraska law requires that issues of ineffective assistance of counsel be raised on direct appeal or be waived, the fact that they are raised does not necessarily mean they can be resolved.

16. Effectiveness of Counsel: Records: Appeal and Error. In most instances, claims of ineffective assistance of counsel cannot be resolved on direct appeal, because the trial record that an appellate court reviews is devoted to issues of guilt or innocence and usually will not disclose the facts necessary to decide whether counsel's performance was deficient or whether such deficient performance prejudiced the defense.

17. ___: ___: ___. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.

Appeal from the District Court for Cedar County: Paul J. Vaughan, Judge.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

Sievers, Pirtle, and Riedmann, Judges.

RlEDMANN, Judge.

I. INTRODUCTION

William Joseph Kelly appeals from the order of the district court for Cedar County convicting him of two counts of first [20 Neb.App. 873] degree sexual assault and two counts of incest. Kelly argues that the evidence was insufficient to support the convictions, that the district court admitted unfairly prejudicial evidence of prior alleged sexual assaults, and that his trial counsel was ineffective. Finding no merit to Kelly's arguments, we affirm.

II. BACKGROUND

Kelly was charged by second amended information with two counts of first degree sexual assault and two counts of incest against his daughter, K.K. The first count of sexual assault and first count of incest were alleged to have occurred "[b]etween on or about September 1, 2009 and on or about April 30, 2010 . . . ." The second count of sexual assault and second count of incest were alleged to have occurred "[b]etween on or about March 1, 2010 and on or about April 30, 2010 ... at [Kelly's] Cedar County residence just before K.K.'s decision to move out of [Kelly's] Cedar County residence . ..." A jury found Kelly guilty of all four counts.

Prior to trial, the State sought permission to elicit testimony from K.K. that Kelly had been sexually assaulting her over the entire 10-year period leading up to the charged offenses. Kelly's counsel objected, arguing that the evidence of other offenses was more prejudicial than probative, and asked that the court conduct a hearing to determine admissibility under Neb. Evid. R. 414, Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012). The district court determined that the history of the relationship between Kelly and K.K. was intertwined with K.K.'s ability to relate what happened on the dates of the charged offenses and, thus, that the prior sexual assaults were not "other bad acts, per se, that would require a 414 type of hearing."

K.K. is the daughter of Kelly and his ex-wife, Jodi K. Kelly and Jodi divorced when K.K. was 4 years old. Kelly is currently married to Tiffany K, and they have three children together. After Kelly and Jodi's divorce, K.K. initially lived with Jodi in and near Sioux City, Iowa, but when she was 13, she moved in with Kelly and his family in Sioux City. In September 2009, when K.K. was 15, she moved with Kelly and his family to a farmhouse in Cedar County.

[20 Neb.App. 874] K.K. testified that Kelly "had sex with [her] and other forms of it." She remembered that the first time anything sexual happened with Kelly, she was 6 or 7 years old and Kelly made her give him a "hand job." K.K. remembered that the first time she gave Kelly oral sex was when she was 10 or 11 years old and he ejaculated in her mouth. The first time Kelly had sexual intercourse with K.K., she was approximately 13 years old; K.K. testified, "It hurt really ...


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