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State v. Newman

Court of Appeals of Nebraska

July 16, 2013

State of Nebraska, Appellee,
v.
Stewart O. Newman, Appellant.

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Appeals from the District Court for Douglas County: J. PATRICK MULLEN, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Jeanine E. Tlustos for appellant.

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

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

1. Constitutional Law: Search and Seizure: Motions to Suppress. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

2. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. For the protections of the Fourth Amendment to apply, a seizure must have occurred. A seizure requires either a police officer's application of physical force to a suspect or a suspect's submission to an officer's show of authority.

3. Search and Seizure. Determinations as to whether a person has been seized are questions of fact.

4. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.

[21 Neb.App. 30] 5. Police Officers and Sheriffs: Search and Seizure. In addition to situations where an officer directly tells the suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen's person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

6. Police Officers and Sheriffs: Search and Seizure. The question of whether a person's consent to accompany law enforcement officials was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of the circumstances.

7. Police Officers and Sheriffs: Search and Seizure. A request to accompany law enforcement to a police station for questioning does not carry an implication of obligation so awesome for a suspect that it renders his actions involuntary.

8. Constitutional Law: Search and Seizure: Waiver. Both the U.S. and Nebraska Constitutions guarantee the right to be free from unreasonable searches and

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seizures. That right may be waived by consent.

9. Warrantless Searches: Proof. When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that the consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

10. Warrantless Searches: Police Officers and Sheriffs. A warrantless search is valid when based upon consent of a third party whom the police, at the time of the search, reasonably believed possessed authority to consent to a search of the premises, even if it is later demonstrated that the individual did not possess such authority.

11. Speedy Trial. Neb.Rev.Stat. § 29-1207 (Cum.Supp.2012) provides that, in general, a defendant must be brought to trial within 6 months after the filing of the information, unless the 6 months are extended by any period to be excluded in computing the time for trial.

12. Speedy Trial. If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, he or she shall be entitled to an absolute discharge from the offense charged.

13. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous.

14. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

15. Indictments and Informations: Speedy Trial. When determining the impact the filing of an amended information has on speedy trial considerations, it is important to determine whether the amendment charges the same or a totally different crime, and if it does not change the nature of the charge, then the time continues to run against the State for purposes of the speedy trial act.

[21 Neb.App. 31] 16. Indictments and Informations. An amended information which charges a different crime, without charging the original crime(s), constitutes an abandonment of the first information and acts as a dismissal of the same.

17. Sexual Assault: Words and Phrases. Neb.Rev.Stat. § 28-319.01 (Cum.Supp.2012) provides, in relevant part, that a person commits sexual assault of a child in the first degree when he or she subjects another person under 12 years of age to sexual penetration and the actor is at least 19 years of age or older.

18. Sexual Assault: Words and Phrases. Neb.Rev.Stat. § 28-318(6) (Reissue 2008) defines sexual penetration as meaning 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.

19. Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such

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matters are for the finder of fact. The relevant question for an appellate court 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 reasonable doubt.

20. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

21. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

22. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

23. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

Irwin, Judge.

[21 Neb.App. 32] I. INTRODUCTION

Stewart O. Newman appeals his convictions and sentences on one count of first degree sexual assault of a child and six counts of visual depiction of child pornography. On appeal, Newman challenges rulings of the district court for Douglas County overruling two motions to suppress, overruling a motion to discharge, finding sufficient evidence to support the sexual assault conviction, and imposing sentences. We find Newman's assertions on appeal to be meritless, and we affirm.

II. BACKGROUND

This case involves allegations of first degree sexual assault of a child and visual depiction of child pornography involving one young girl, who was born in March 1999 and was approximately 10 years of age at the time of the events giving rise to these criminal charges. To protect her anonymity, we will simply refer to her as " Jane" (as in " Jane Doe" ) throughout this opinion. In addition, inasmuch as the factual background of this case is graphic, our explanations of the testimony will be only as detailed as necessary to explain the underlying legal analysis that results in affirmance of Newman's convictions.

In February 2010, Jane sent her mother a text message indicating that Newman had been " trying to have sex with [her]." Jane's mother called the 911 emergency dispatch service and reported the allegations and then took Jane to " Project Harmony," where she was interviewed by a member of the Omaha Police Department's special victims/child sexual assault unit. After Jane's interview with law enforcement, Newman was arrested. Sometime later, Newman's wife contacted law enforcement about suspecting that there was child pornography on a laptop computer

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in Newman's home, and a search of that laptop revealed a variety of suspected pornographic images of children, including photographs of Jane.

[21 Neb.App. 33] 1. JANE'S TESTIMONY AND INTERVIEW

Jane testified at trial, recounting the history of Newman's conduct toward her. Jane testified that Newman began speaking with her about sex when she was approximately 6 years of age. She testified that when she was approximately 7 or 8 years of age, she observed Newman looking at pornography on a computer and Newman began showing her pornographic images. She testified that when she was 6 years of age, Newman began touching her " private parts" with his hands, and that when she was approximately 8 years of age, he touched her " private" with his " private." She testified that he also would sometimes " touch [her] private" with his mouth and " lick [her] private."

Jane testified that there were occasions where Newman and Jane would both be unclothed and Newman would rub his penis on her vagina, rubbing it " back and forth." She testified that Newman rubbed his penis " inside the folds" of her vagina and that he would then instruct her to lie on her stomach. She testified that after she lay on her stomach, Newman would rub his " front area" on her " bottom," with his penis " on top of [her] ...


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