NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Box Butte County: Travis P. O'Gorman, Judge.
Larry L. Miller for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Andrew M. Lancaster appeals from his convictions in the district court for Box Butte County for two counts of felony child abuse. On appeal, he assigns error to the admission of certain testimony. He also asserts that he received ineffective assistance of counsel, that the court imposed excessive sentences, and that the court erred by imposing sentences of imprisonment rather than probation. Because we find no abuse of discretion in the admission of the testimony in question and in the sentences imposed, we affirm. The record on appeal is insufficient to review the ineffective assistance of counsel claim.
Kathryn H. is the mother of two girls: A.R., born in January 2008, and T.R., born in November 2008. She is also the mother of a boy, Z.H., born in 2011. The children's fathers are not involved in their lives. At the time of trial, Kathryn had lived in Alliance, Nebraska, for almost 5 years. Kathryn has known Lancaster since middle school, and she began communicating with him over the Internet in approximately 2011, while Lancaster was overseas serving in the military. Lancaster moved in with Kathryn in Alliance on May 8, 2012. Kathryn's baby, Z.H., was 7 months old when Lancaster moved in with her. Between the time of Z.H.'s birth and the time Lancaster moved in, there were no other adults living with Kathryn. From mid-May to mid-June, A.R. and T.R. were in daycare with outside daycare providers, but after that time, Lancaster became the children's primary caretaker while Kathryn was at work.
Z.H. has Down syndrome and other health issues. In mid-June 2012, Z.H. had open heart surgery in Denver, Colorado. Kathryn, Lancaster, and the children went to Denver on approximately June 17 and returned to Alliance after Z.H. was discharged on approximately July 9. On July 21, following a child welfare check, the girls were found to have bruises all over their bodies, and Lancaster was arrested.
On August 14, 2012, the State filed an information in the district court, charging Lancaster with two counts of felony child abuse in violation of Neb. Rev. Stat. § 28-707 (Cum. Supp. 2012), both of which were Class IIIA felonies. The State also charged Lancaster with one count of strangulation in violation of Neb. Rev. Stat. § 28-310.01 (Reissue 2008), a Class IV felony. The State alleged that Lancaster committed these crimes between June 1 and July 21, 2012.
A bench trial was held before the district court on January 16 through 18, 2013.
At trial, police officer Michelle Perry testified that on July 21, 2012, at approximately 8 a.m., she arrived at Kathryn's apartment in Alliance to complete a child welfare check that had been called in the night before. According to Perry, Kathryn was very hesitant to let her in the apartment. When Perry told Kathryn that she was there to do a welfare check on Kathryn's children, Kathryn told her that she had been afraid something like that would happen because the girls were hitting each other and that she was afraid to take them out in public. Kathryn eventually admitted Perry into the apartment. When they reached the girls' room, the girls appeared to be asleep. Kathryn woke the girls, and Perry immediately noticed bruising on their faces, arms, and legs. While Kathryn was still in the room, Perry asked the girls how they got the bruises, and they both responded that they hit each other. Perry asked the girls further questions to try to find out what was going on, and Kathryn left the room. According to Perry, at that point, A.R. looked directly at Perry, tilted her head back, and pointed to bruising on her neck. Perry asked what happened, at which time A.R. raised both of her hands and put them around her neck as if she was being strangled. After this testimony, the prosecutor asked Perry to demonstrate for the court what A.R. did, and Perry demonstrated without objection from Lancaster's attorney. Perry testified that after asking A.R. who had done that to her, Perry stopped questioning the girls and radioed her sergeant to come to the apartment. After his arrival, Perry's sergeant determined that further investigation was necessary. Kathryn and Lancaster then drove the children to the police department while Perry followed in her patrol car.
Police investigator Colleen Busch was called in to assist with the child abuse investigation. Busch observed multiple bruises over multiple surfaces of the girls' bodies. Throughout their contact, Kathryn made statements to Busch that the girls had been hitting one another. Busch informed Lancaster and Kathryn that she needed to conduct a forensic interview of the girls at a child advocacy center. Kathryn and Lancaster drove the children to the center where Busch interviewed both A.R. and T.R. individually. During the interviews, Busch looked at various parts of the girls' bodies and questioned them about their bruises. Busch testified that based on her interviews of the girls, her observations of the injuries, her training and experience in the area of child abuse investigation and detection, and the girls' responses to her questions about their injuries, she formed the opinion that most of the girls' bruises were not accidental, that most of the bruises were not caused by a small child, and that the girls were in need of medical treatment. Busch testified further that based upon her interviews with and observation of the children and their explanation for the bruises, she formed the opinion that Lancaster was the main perpetrator in this case. After completing the forensic interviews, Busch took the children to the hospital for medical treatment, and Lancaster was placed under arrest. At the hospital, Busch took photographs of the girls' bruises and injuries with Perry's assistance. The photographs were admitted into evidence and show multiple bruises of varying sizes and colors all over both girls' bodies. Busch testified that because of individual variations from person to person and due to bruise locations, law enforcement and medical personnel have moved away from dating bruises by color. While testifying about pictures showing bruising on T.R.'s ear, Busch testified that she believed this bruising was consistent with child abuse. Busch testified that during her 14 years investigating child abuse cases, she had never seen bruising to the level she observed in this case. The bruising on A.R.'s legs was the most severe Busch had seen based on her observations investigating hundreds of child abuse cases. Lancaster's attorney did not object to any of the above testimony.
Larry Steele is a registered nurse and trauma coordinator who was working in the emergency room the day that Busch brought the girls to the hospital for a medical examination. Steele testified that he did a head-to-toe assessment of the girls and that because of the significant amount of bruising all over their bodies, fitting a pattern of many different injuries at many different times, he ordered x rays for the children. The girls' x rays came back "negative for bony malformations." Steele testified that he cannot identify the age of a particular bruise, but, based on his training and experience, he was able to tell the bruises on the girls were different ages because of the different colors. Steele also testified that he observed some bleeding in A.R.'s eyes which caused him to be concerned that she might have been strangled, since strangulation can cause hemorrhaging in the eyes. Steele assisted Busch in taking some of the photographs of the girls. Steele testified about certain photographs which depicted causes of concern for him and which, based on his education and experience, appeared to be consistent with intentional injuries or abuse. Lancaster's attorney did not object to any part of Steele's testimony.
Antonia Chiesa, a pediatrician, testified as an expert witness. Chiesa testified that based upon her observations and evaluations of the girls' medical records and her training, experience, and education, she formed the opinion that most of the girls' injuries were consistent with physical child abuse and were not inflicted by a child. During the course of her testimony, Chiesa reviewed the photographs taken by Busch in July 2012 and testified as to the injuries on each child that caused her concern with respect to possible physical child abuse. Chiesa testified that accidental injuries in children tend to occur in areas of "bony prominence, " such as the forehead, elbow, knees, and shins. Chiesa testified that injuries on the soft tissue areas, such as the stomach, genitalia, buttocks, cheeks, ears, or neck, are more worrisome because they do not typically occur by accident. She also testified that patterns in bruises, and bruises in different stages of healing or on different planes of the body, are possible red flags for abuse. Chiesa ...