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State v. Kays

Court of Appeals of Nebraska

October 15, 2013

State of Nebraska, appellee,
v.
Charles E. Kays, appellant.

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Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge. Affirmed.

Frank E. Robak, Sr., of Robak Law Office, for appellant.

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Jon Bruning, Attorney General, and George R. Love for appellee.

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

Syllabus by the Court

1. Appeal and Error. In order to be considered by an appellate court, alleged errors must be both specifically assigned and specifically argued in the brief of the party asserting the error.

2. Appeal and Error. An appellate court does not consider errors which are argued but not assigned.

3. Rules of the Supreme Court: Conflict of Interest: Words and Phrases: Appeal and Error. A " conflict of interest" has been interpreted by the Nebraska Supreme Court to fall within the definition of a " disability" under Neb. Ct. R. App. P. § 2-105(5) (rev. 2010).

4. Rules of the Supreme Court: Recusal: Conflict of Interest: Words and Phrases: Appeal and Error. For the purposes of Neb. Ct. R. App. P. § 2- 105(5) (rev. 2010), the term " disability" includes situations where a judge has recused himself or herself due to a conflict of interest.

5. Trial: Records: Appeal and Error. The record of the trial court, when properly certified to an appellate court, imports absolute verity; if the record is incorrect, any correction must be made in the district court.

6. Trial: Records: Evidence: Appeal and Error. The trial court record cannot be contradicted in an appellate court by extrinsic evidence.

7. Trial: Records: Appeal and Error. An issue of fact cannot be made by an appellate court as to any matter properly shown by the records of the trial court.

8. Trial: Records: Evidence: Appeal and Error. In an appellate review, a transcript of the orders or judgment entered is the sole, conclusive, and unimpeachable evidence of the proceedings in the district court.

9. Trial: Records: Appeal and Error. The correctness of the trial court record may not be assailed collaterally in an appellate court.

10. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

11. Criminal Law: 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 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.

12. Sexual Assault: Words and Phrases. For sexual penetration, it is not necessary that the vagina be entered or that the hymen be ruptured; the entry of the vulva or labia is sufficient.

[21 Neb.App. 377] 13. Effectiveness of Counsel: Records: Appeal and Error. 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.

14. Effectiveness of Counsel: Evidence: Appeal and Error. An appellate court will not address an ineffective assistance of counsel claim on direct appeal if it requires an evidentiary hearing.

15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

16. Constitutional Law: Sentences. In cases where a defendant does not raise a facial challenge to the constitutionality of the statute regarding his or her sentencing, but, rather, asserts that the sentence " as applied" to him or her constitutes cruel and unusual punishment, the challenge involves the same considerations as a claim of excessive sentence.

Inbody, Chief Judge.

I. INTRODUCTION

Charles E. Kays appeals his convictions, following a jury trial, of first degree sexual assault of a child and two counts of third degree sexual assault of a child, and appeals the sentences imposed thereon.

II. FACTUAL BACKGROUND

The victim in this case, C.F., has lived with her grandparents, Kays and Linda Kays, since she was 4 years old. On October 5, 2010, C.F. got into an argument with Kays and Kays threatened to shoot several people, including C.F., C.F.'s father, Linda, and C.F.'s aunt. C.F. called her father, after which both C.F. and her father called the 911 emergency dispatch service. Two Omaha police officers, Joe Eischeid and another officer, responded to the Kays' home to conduct a check on the well-being of [21 Neb.App. 378] C.F. and her younger brother. Upon investigation, the officers determined that there was no immediate threat; however, as the officers were leaving, C.F. became very upset and began crying. As a result, the officer accompanying Eischeid took C.F. outside to speak to her privately, at which time she disclosed sexual abuse.

In the meantime, Eischeid remained in the house with Kays. Kays informed Eischeid that " he thinks he knows what is bothering [C.F.]," and Kays indicated that " a few years ago [C.F.] had the habit of walking around the residence naked" ; that " at times, she would come out of the shower or bathtub naked and run around the house" ; and that " on several occasions, she would come up to him while ... she did not have any clothes on and would sit on his face." Kays indicated he would tell C.F. that it was wrong and that she was a " big girl." Kays also told Eischeid that on a few occasions, C.F. would climb into bed with him, get under the covers while he was sleeping, and put her hand down his pants, touching his penis. Kays said he would tell her that it was not right and that she was a " big girl." Kays further indicated that he has a vibrating massager he uses on his back and that on one other occasion, he had used the vibrator on C.F. while she did not have any clothes on and may have accidentally touched her vaginal area with it. During Kays' statements, Eischeid did not ask any questions, testifying that he " was just totally shocked and just let him talk." After conferring with the other officer, Eischeid transported C.F. and her brother to " Project Harmony," an agency which has specially trained investigators to handle potential child sexual assault victims. Officer Amber Schlote from the child victims unit conducted an interview of C.F., and following the interview with C.F. and an interview with Kays, Kays was arrested and charged with first degree sexual assault of a child. The information was later amended to add two counts of third degree sexual assault of a child.

A jury trial was held on April 6 through 8, 2011. During voir dire, 13 jurors were sworn in, with the alternate juror not identified. Trial commenced. Evidence adduced at trial established that Kays was born in April 1941 and that C.F. was born in March 2000.

[21 Neb.App. 379] The State's first witness was Schlote. Schlote testified that during her interview of C.F., she asked C.F. to use dolls to demonstrate what had happened to her during the first incident of sexual abuse. According to Schlote,

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[C.F.] laid the grandpa doll on the floor on its back and used the doll that was her and sat it on top of the grandpa doll and showed that she was facing him with her knees under here. She was on her knees and her feet behind her and she said she straddled him.

Specifically, " [s]he showed that she straddled his chest and showed that he used his hand to pull her forward to his face." Additionally, C.F. demonstrated that the male doll put his head in the female doll's vaginal area. According to Schlote, C.F. demonstrated two different incidents where the female doll was pulled up toward the male doll's face, with the vaginal area in the male doll's face. In speaking with C.F., Schlote was able to determine that the incidents occurred in two locations or houses and that the incidents occurred over a period of time. After Schlote asked C.F. to draw a picture of something that happened, C.F. drew a picture of a vibrating massager. During the interview, C.F. indicated to Schlote that Kays acted inappropriately on four or five occasions.

C.F. testified that at the time of trial, she was 11 years old. She testified that she began living with her grandparents, Kays and Linda, when she was 4 years old and that her brother began living with them the following year. The first place that C.F. lived with her grandparents was on Cypress Drive in Omaha; then, when C.F. was 7 years old, they moved to a house on Holmes Street in Omaha. C.F. testified that she remembered that the move occurred when she was 7 years old, because Kays had a heart attack and wanted to move to a different residence. C.F. testified that since she began living with her grandparents, Kays had touched her four times in a way that made her feel bad.

C.F. testified that the first incident occurred when she was 4 years old and lived on Cypress Drive. C.F. testified that she had been sitting on her bed, when Kays told her to move on top of him and pull her pants down. Kays was lying down, and C.F. sat so that her legs were on both sides of him and [21 Neb.App. 380] she was facing him. C.F. testified that Kays " would lick [her]" " [a]round [her] private" and that Kays told her not to tell anyone what happened or he would go to jail.

The second incident also occurred at the house on Cypress Drive. C.F. testified that she was 5 years old at the time of the second incident. C.F. testified that she was lying down with Kays in his bedroom when he told her to shut the door and to take off her panties. C.F. " went up next to [Kays]," he moved her to get her on top of him, and then he licked her vagina.

The third incident occurred when C.F. was 7 years old, after moving to the home on Holmes Street. C.F. testified that Kays touched her with his hands " [a]round [her] vagina."

The fourth incident also occurred at the Holmes Street address when she was 8 years old. Kays again touched C.F. " around [her] private" with his hands and with a vibrating massager. C.F. stated that Kays then told her to follow him into the bathroom and that he then plugged in the vibrating massager and put it on his penis until semen " went into the toilet."

C.F. responded in the negative when asked: " Did [Kays] put his fingers in your vagina?" and " [D]id he ever touch inside it?" and " Was there ever a time when he was touching you with his fingers that he put them in your private?" C.F. further responded negatively when asked whether she remembered a time where she said that " he took his finger and put it in [her] vagina."

The defense moved for a directed verdict on count I, first degree sexual assault of a child, on the basis that the State had

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not proved the element of penetration. The motion was overruled, and Kays called witnesses on his behalf consisting of Linda and himself. At the close of the evidence, the defense renewed its motion for a directed verdict, which was overruled by the court. After closing arguments, the case was submitted to the jury. The dismissal of the alternate juror is not found in the record.

The jury found Kays guilty of the charged offenses. The 12 jurors were polled, and, when asked, each juror responded individually that this was his or her verdict. Thereafter, the district court sentenced Kays to 15 to 15 years' imprisonment [21 Neb.App. 381] on count I and 20 months' to 5 years' imprisonment each on counts II and III. Additionally, counts II and III were ordered to be served concurrently to each other and consecutively to count I. Kays was given credit for 97 days served.

III. PROCEDURAL BACKGROUND

Kays timely appealed to this court, but filed an " Application for Relief, Guidance, or Other Remedy Including Striking of [the] Bill of Exceptions" and/or motion for the issuance of a show cause order as to why summary reversal should not be granted due to " Bill of Exceptions Irregularities Highly Prejudicial" to Kays. The accompanying affidavit set forth that copies of the bill of exceptions, one of which was e-mailed to Kays' appellate counsel by the court reporter, provided that 13 jurors had been selected and 13 jurors polled. However, the affidavit stated that in January 2012, after preparation of Kays' brief, the court reporter took the bill of exceptions, without signing it out, and substituted a replacement bill of exceptions which contained a file-stamped cover page dated August 11, 2011, and that this replacement bill of exceptions altered the polling of jurors to include 12 jurors. Kays' motion was overruled without prejudice to proceeding in the district court to correct the bill of exceptions. Kays then filed an application for remand of the cause to the district court to correct the bill of exceptions due to discrepancies in the original bill of exceptions and a subsequently filed bill of exceptions regarding the polling of a 13th juror, which motion for remand was sustained by this court. Thereafter, on September 4, 2012, a hearing was held before a different district court judge regarding Kays' motion to correct and file an amended bill of exceptions and a supplemental request for leave to amend the bill of exceptions to conform to the evidence; on the court's own motion, due to a conflict of interest, the original district court judge who had conducted the trial recused herself from the proceedings to amend the bill of exceptions.

At the hearing on Kays' motion to correct and file an amended bill of exceptions and a supplemental request for leave to amend the bill of exceptions to conform to the evidence, the court reporter testified that she was the court [21 Neb.App. 382] reporter during Kays' jury trial and that she created the original bill of exceptions. The court reporter initially filed the original bill of exceptions on August 11, 2011. After the filing of the original bill of exceptions, the court reporter received a letter from Kays' appellate counsel, dated September 23, 2011, informing her that there were some errors in the bill of exceptions and that " he wanted [her] to correct it and refile it." The court reporter proceeded to have the bill of exceptions proofread again, made corrections, printed out a new corrected copy of the bill of exceptions, and refiled the corrected replacement bill of exceptions. She further testified that when Kays' appellate counsel " didn't tell [her] to do it a different way, that that was the way I was to do it. That's the first time I've ever had to do that before." The court

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reporter testified that at her request, the replacement bill of exceptions was backdated to August 11, 2011, which was the date that the original bill of exceptions had been filed. The court reporter testified that when she refiled the bill of exceptions, she was not aware she was not allowed to " backdate" it, and that she was not trying to hide anything or cover up anything by her actions. The court reporter admitted that she changed the contents of the bill of exceptions without court order or court approval, that she shredded the original bill of exceptions, and that she did not have court approval to destroy the original bill of exceptions. The court reporter further admitted that on a later unknown date, she backdated the replacement certificate page to reflect the original filing date of August 11, 2011.

The court reporter also testified that she e-mailed Kays' appellate counsel a copy of the original version of the bill of exceptions and that when she attempted to e-mail a corrected version of the bill of exceptions, she e-mailed the wrong file and did not send the proofread version. When asked about e-mailing the bill of exceptions to defense counsel, the court reporter stated:

[W]hy I emailed that to him is because I— I felt bad. This is the first time that's ever happened to me where someone pointed out there [were] errors in my Bill of Exceptions. Usually you have to pay for the copies. I felt [21 Neb.App. 383] bad, so I emailed it to him, and I must have picked the wrong file.

The court reporter admitted the mistakes that she made in this case, but testified that the final version of the bill of exceptions currently filed with the clerk of the district court is the accurate version of what transpired at Kays' trial. She further testified:

I feel bad that it all happened. It was a mistake. And I— I tried to correct it because I wanted to show what happened in the courtroom. I did not do it the right way. I've learned that now. I mean, I just want the accurate record to go up to the appeals court. That's what happened. There were 12 jurors.

One of the exhibits admitted into evidence was an affidavit from juror No. 13. Her affidavit set forth that she had been impaneled as a member of the jury in Kays' case and that she sat as a juror until the case was submitted for deliberation at the close of the evidence, at which time the judge explained that she was the alternate juror and that her service was no longer needed. Her affidavit stated that she did not deliberate in Kays' case.

The district court entered an order finding that the bill of exceptions prepared and filed by the court reporter had been corrected as ordered and constituted the bill of exceptions upon which Kays' appeal should proceed.

IV. ASSIGNMENTS OF ERROR

On appeal, Kays' assignments of error, consolidated and restated, are that the district court erred in finding that the replacement bill of exceptions was credible and was to serve as the bill of exceptions in this case and in failing to discharge the alternate juror prior to submission of the case to the jury for deliberation, in accordance with Neb.Rev.Stat. §§ 29-2004(2) and 29-2005 (Reissue 2008), resulting in a verdict by a 13-member jury without his consent or waiver. Kays also contends that he did not receive a fair and impartial trial because of prosecutorial misconduct, that the evidence was insufficient to support his convictions, and that he received [21 Neb.App. 384]ineffective assistance of trial counsel. Finally, Kays contends that the sentences imposed upon him were excessive.

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We note that in his brief, Kays argues several errors that are not assigned, such as that the district court abused its discretion in not allowing testimony concerning a psychologist, that a written question by the jury contained in the file was not addressed on the record, and that the district court erred in overruling his motion for directed verdict. In order to be considered by an appellate court, alleged errors must be both specifically assigned and specifically argued in the brief of the party asserting the error. Dowd Grain Co. v. County of Sarpy, 19 Neb.App. 550, 810 N.W.2d 182 (2012). We do not consider errors which are argued but not assigned. See State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).

V. ANALYSIS

1. BILL OF EXCEPTIONS

Kays contends that the district court erred in finding that the replacement bill of exceptions was credible and was to serve as the bill of exceptions in this case.

Due to discrepancies in the original bill of exceptions and a subsequently filed bill of exceptions, the cause was remanded to the district court for the certification of an appellate record to be conducted pursuant to the procedure set forth in Neb. Ct. R. App. P. § 2-105(5) (rev. 2010), which provides:

The parties in the case may amend the bill of exceptions by written agreement to be attached to the bill of exceptions at any time prior to the time the case is submitted to the Supreme Court. Proposed amendments not agreed to by all the parties to the case shall be heard and decided by the district court after such notice as the court shall direct. The order of the district court thereon shall be attached to the bill of exceptions prior to the time the case is submitted to the Supreme Court. Hearings with respect to proposed amendments to a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have ceased to hold office, or shall be prevented by disability from holding the hearing, or shall be absent from the state, such proposed amendments shall [21 Neb.App. 385] be heard by the successor judge, or by another district judge in the district, or by a district judge in an adjoining judicial district.

On September 4, 2012, a hearing was held before a different district court judge regarding Kays' motion to correct and file an amended bill of exceptions and a supplemental request for leave to amend the bill of exceptions to conform to the evidence; on the court's own motion due to a conflict of interest, the original district court judge who had conducted the trial recused herself from the proceedings to amend the bill of exceptions. Although a " conflict of interest" is not one of the listed factors in § 2-105(5) which prevent the original judge from presiding over a hearing to certify a bill of exceptions, the rule does provide that another district judge may hold the hearing if the original judge " shall be prevented by disability from holding the hearing." In similar circumstances, a " conflict of interest" has been interpreted by the Nebraska Supreme Court to fall within the definition of a " disability." See, In re Complaint Against White, 264 Neb. 740, 651 N.W.2d 551 (2002); Stewart v. McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965); Gandy v. State, 27 Neb. 707, 43 N.W. 747 (1889).

Stewart v. McCauley, supra, involved an action instituted in a district court by an infant child's prospective adoptive parents to bring to the court's attention the need to provide for the welfare, custody, and control of a neglected and dependent child, where the county attorney had accepted

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employment in a civil action representing the child's biological parents, which made it impossible to secure the consent of the county attorney as required by statute at that time and therefore prevented any action to protect the welfare of the minor child. The Nebraska Supreme Court phrased the question presented as whether an irresponsible parent (or possibly a much worse parent) could prevent action by the juvenile court to protect the welfare of an innocent child merely by hiring the county attorney in a civil action involving that child.

The Supreme Court turned to Neb.Rev.Stat. § 23-1205 (1943), which, at that time, gave the district court the authority to appoint an acting county attorney in the event of absence, [21 Neb.App. 386] sickness, or disability of the county attorney. Stewart v. McCauley, supra . The Supreme Court noted that as early as its decision in Gandy v. State, supra, in 1889, the term " disability" had been interpreted " to cover situations where the county attorney by reason of prior employment disqualified himself to act in the new case." Stewart v. McCauley, 178 Neb. at 418, 133 N.W.2d at 925. See, also, In re Complaint Against White, supra (judge's personal dissatisfaction with performance of county attorney's office did not constitute " disability" within meaning of § 23-1205 (Reissue 1997)). Thus, the Supreme Court in Stewart v. McCauley, supra , determined that the county attorney's representation of the minor child's biological parents constituted a " disability" for the purposes of § 23-1205 (1943).

Applying a consistent interpretation of the term " disability" to § 2-105 (5), if the term " disability" is interpreted to cover situations where a public official disqualifies himself or herself to act in a new case by reason of prior employment, it follows that " disability" would likewise cover situations where a judge has recused himself or herself due to a conflict of interest. Thus, the original district court judge who presided over Kays' trial and who recused herself from holding the hearing regarding the certification of the bill of exceptions due to a conflict of interest was, in fact, prevented by a " ...


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