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Appeal from the District Court for Jefferson County: PAUL W. KORSLUND, Judge.
Affirmed in part, and in part vacated and remanded for resentencing.
James R. Mowbray and Kelly S. Breen, Lincoln, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
1. Search Warrants: Affidavits: Probable Cause. To be valid, a search warrant must be supported by an affidavit which establishes probable cause.
2. Search Warrants: Probable Cause: Words and Phrases. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found.
3. Search Warrants: Probable Cause: Proof. Proof of probable cause justifying issuance of a search warrant generally must consist of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time.
4. Search and Seizure: Probable Cause. Probable cause to search is determined by a standard of objective reasonableness, that is, whether known facts and circumstances are sufficient to warrant a person of reasonable prudence in a belief that contraband or evidence of a crime will be found.
5. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a " totality of the circumstances" rule whereby the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.
6. Search Warrants: Affidavits: Appeal and Error. As a general rule, an appellate court is restricted to consideration of the information and circumstances found within the four corners of an affidavit in support of a search warrant.
7. Probable Cause: Affidavits: Time. There is no bright-line test for determining when information is stale. Whether the averments in an affidavit are sufficiently timely to establish probable cause depends on the particular circumstances of the case, and the vitality of probable cause cannot be quantified by simply [21 Neb.App. 680] counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit. Time factors must be examined in the context of a specific case and the nature of the crime under investigation.
8. Probable Cause: Affidavits: Time. Where the facts contained in an affidavit indicate an isolated violation of the law, it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time; however, where the facts contained in an affidavit indicate protracted and continuous criminal activity or, in other words, a course of conduct, the passage of time becomes less significant.
9. Search Warrants: Affidavits. Omissions in an affidavit used to obtain a search warrant are considered to be misleading when the facts contained in the omitted material tend to weaken or damage the inferences which can logically be drawn from the facts as stated in the affidavit.
10. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defendant who seeks to suppress evidence obtained under a search warrant has the burden of establishing that the search warrant is invalid so that evidence secured thereby may be suppressed.
11. Search Warrants: Affidavits: Probable Cause: Courts: Appeal and Error. The role of an appellate court is to
determine whether the affidavit used to obtain a search warrant, if it contained the omitted information, would still provide a magistrate or judge with a substantial basis for concluding that probable cause existed for the issuance of the warrant. If a substantial basis for probable cause would still exist, then the defendant's argument fails.
12. 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.
13. 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.
14. Trial: Jurors. The issue of the retention of a juror after the commencement of trial is a matter of discretion for the trial court.
15. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.
16. Trial: Jurors: Presumptions: Proof. The competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.
17. Juror Qualifications: Judges. A trial judge is not required to excuse a juror when the juror is able to decide the case fairly and impartially.
18. Juror Qualifications: Appeal and Error. An appellate court defers to the trial court's decision whenever a juror is unequivocal that he or she can be fair or impartial. This rule applies both to the issue of whether a potential juror should be removed for cause prior to trial and to the situation of whether a juror should be removed after the trial has commenced.
19. Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.
[21 Neb.App. 681] 20. Appeal and Error. Consideration of plain error occurs at the discretion of an appellate court.
21. Appeal and Error. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
22. Statutes. To the extent there is a conflict between two statutes, the specific statute controls over the general statute.
23. Convictions: Sentences. The sentence for any conviction carrying a mandatory minimum sentence must be ordered to be served consecutively.
24. Convictions: Sentences. Mandatory minimum sentences cannot be served concurrently. A defendant convicted of multiple counts each carrying a mandatory minimum sentence must serve the sentence on each count consecutively.
25. Sentences: Time. A sentence validly imposed takes effect from the time it is pronounced.
26. Sentences. When a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of court at which the sentence was imposed.
27. Judgments: Records. When there is a conflict between the record of a judgment and the verbatim record of the proceedings in open court, the latter prevails.
Inbody, Chief Judge.
Ronald L. Lantz, Sr., was convicted of three counts of first degree sexual assault of a child after a jury determined that he had digitally penetrated his 14-year-old stepdaughter and her friend during a sleepover. He has appealed these convictions, contending that the district court erred (1) in denying his motion to suppress, (2) in admitting evidence of prior sexual assaults, and (3) in failing to remove a juror who overtly demonstrated sympathy and bias.
[21 Neb.App. 682] II. STATEMENT OF FACTS
On the evening of January 10, 2011, 14-year-old best friends A.M. and M.C. had a sleepover at A.M.'s house. Also at A.M.'s home were A.M.'s mother; A.M.'s stepfather, Lantz; and A.M.'s younger brother and younger sister. At around 10 or 10:30 p.m., A.M., M.C., Lantz, and A.M.'s younger sister were in the living room and A.M. and M.C. began watching a " scary" movie. A.M.'s mother and younger brother were already asleep in other areas of the home.
During the movie, Lantz gave M.C. a neck and back massage. During the back massage, M.C. was lying on her stomach on a couch and Lantz was kneeling on the floor. Around the time that Lantz was in the middle of giving M.C. the back massage, A.M. was asleep. During the back massage, Lantz said to M.C., " [D]on't worry, I'm not going to do anything stupid." As M.C. began to drift off to sleep, she noticed that Lantz was starting to massage her lower calves and was working his way up her legs. When Lantz got to her lower back, he stuck his hands down her pants at her waistline along her back. Lantz' hands continued to go lower until he put a finger inside of M.C.'s vagina. M.C. could feel what was happening, but because she believed Lantz thought that she was sleeping, she acted like she was stretching and getting ready to wake up. At that point, M.C. felt Lantz pull his hand out of her pants and turn around quickly, and by the time that she sat up, Lantz was sitting on his bottom, not his knees, and was facing the television.
M.C. complained that she had a headache and asked Lantz to get her a washcloth and some Tylenol; when Lantz left to go to the kitchen, she moved from the couch to the recliner. After Lantz brought her the washcloth and Tylenol, he sat on the couch and put A.M.'s feet over his lap. M.C. observed Lantz' hand under a blanket that was covering A.M., and to M.C., he appeared to extend his hand up toward the area of A.M.'s crotch; M.C. could see the blanket moving. According to A.M., she fell asleep watching the movie and ...