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State v. Cox

Court of Appeals of Nebraska

February 11, 2014

State of Nebraska, Appellee,
Patrick L. Cox, Appellant.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed.

John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., Kearney, for appellant.

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

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

Syllabus by the Court

1. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

2. Rules of Evidence: Expert Witnesses. A trial judge acts as a gatekeeper for expert scientific testimony, and must determine (1) whether the expert will testify to scientific evidence and (2) if that testimony will be helpful to the trier of fact. This entails a preliminary assessment whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology may properly be applied to the facts in issue.

3. Trial: Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), does not create a special analysis for answering questions about the admissibility of all expert testimony.

4. Trial: Expert Witnesses. If a witness is not offering opinion testimony, that witness' testimony is not subject to an inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

5. 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.

6. 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.

Inbody, Chief Judge.

[21 Neb.App. 758] INTRODUCTION

Patrick L. Cox was charged in Buffalo County District Court with strangulation and third degree domestic assault. After a trial on the matter, a jury found Cox guilty on both counts. The district court sentenced Cox to 4 years' probation for the

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strangulation conviction and to 1 year's imprisonment for the third degree domestic assault conviction, with 7 days' credit for time served. On appeal to this court, Cox assigns error to the district court's determinations regarding expert testimony given by a registered nurse. As such, we limit our review of the facts to those relevant to the assignments of error raised by Cox.


Cox and Laura Conner had been in a romantic relationship that lasted approximately 18 months. During that relationship, Cox briefly resided with Conner and her two children from a previous marriage in Conner's home, but Cox moved out of the home when the relationship ended in November 2011. On February 24, 2012, Conner was home with her children when Cox came to her home between 10:30 and 11 p.m. According to Conner, Cox was angry and began yelling at her because she had added male friends to her " Facebook" account and he demanded that she give him her cell phone. Cox lunged at Conner, who was in her bedroom, and she grabbed her cell phone and jumped off of the bed. Cox continued coming toward her with a knife that had been sitting on the kitchen table. Conner grabbed a different knife, which had been in her bedroom next to her cell phone, in reaction to Cox's coming toward her with a knife. Cox attempted to stab at her with the knife he held, which attempts she tried to stop with her cell phone. Conner testified that Cox then grabbed her and threw her against the doorframe, after which he grabbed her throat, slammed her into the bathroom floor, and strangled her until she became unconscious. When Conner regained consciousness, Cox was sitting on the edge of the bathtub " going [21 Neb.App. 759] through [her cell] phone," reading text messages and her " Facebook" account.

Eventually, the police arrived, and the next day, Conner was taken to a hospital. Several photographs that had been taken by the police on the night of February 24, 2012, were received into evidence. Those photographs show significant red marks, bruising, and cuts on Conner's body. Police and hospital personnel testified to observing red marks, bruising, and cuts on Conner, including redness around her neck.

An emergency physician at the hospital examined Conner on February 25, 2012, and testified that Conner had " superficial injuries," but nothing more serious. The doctor testified that Conner told him that she had been " choked," but that she most likely meant that she had been strangled. He observed some " faint redness across the mid to anterior neck," but testified that she did not exhibit other symptoms which he would look for in a patient who had been strangled, such as injury to the airway, sore throat, or subconjunctival hemorrhaging. He testified, to a reasonable degree of medical certainty, that Conner's injuries " possibly could have been due to strangulation."

At trial, Conner explained that on January 3, 2012, a prior incident occurred between herself and Cox, when Cox arrived at her home angry, took her cell phone, and threatened to call her ex-husband to come take her children away. Conner explained that because she could not get her cell phone back from Cox, she opened a pocketknife and threatened to commit suicide in order to get the cell phone back. Conner explained she did not know what else to do in order to get her cell phone back from Cox. Conner testified that once Cox gave Conner her cell phone back, he grabbed her arm, jerked it behind her back, and slammed her face and shoulder into the floor. Conner testified that she

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believed Cox took those actions to get the knife away from her. Conner further testified that she had been in an abusive relationship with her ex-husband and continued to go to counseling to work on fear, posttraumatic stress disorder, and relationships.

At trial, the State sought to introduce Sue Michalski to the stand as an expert witness, to which Cox objected [21 Neb.App. 760] and requested a Daubert hearing. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At the Daubert hearing, Michalski testified that she is a licensed registered nurse who is self-employed in providing expert testimony in domestic assault, strangulation, custody, and sexual assault cases. For 30 years, Michalski had also been the training and education director for a domestic violence coordinating council in Omaha, Nebraska. Michalski was employed as a registered nurse in health and hospice work and " tele-health," as well as a staff nurse in a long-term acute care center. Michalski testified that she had received various types of specialized training related to critical care, strangulation, and domestic violence. As an educator, Michalski had given training sessions and symposiums regarding domestic violence, specifically the dynamics of intimate partner violence from a noninjury perspective to identifying domestic violence injuries. Michalski also testified that she provides training for law enforcement and fire departments, medical students, and hospital personnel in the Omaha and surrounding areas. Michalski testified that through her work, she had articles published twice, had worked with a researcher at a university, and had interviewed over the past 30 years approximately 8,000 to 10,000 victims of domestic violence.

Michalski testified that there were particular characteristics that define victims of interpersonal or domestic violence, including minimization and denial of being in such a relationship, feelings of being trapped, and methodic isolation. Michalski also testified that there are often characteristics of offenders as well, such as getting involved intimately very early on in the relationship, engaging the partner to make them feel good and safe, minimizing and denying accountability for ...

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