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Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Thomas C. Riley, Douglas County Public Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. MILLER-LERMAN, J., concurring.
[288 Neb. 825] Connolly, J.
The State charged Shad M. Knutson with five counts of sexual assault and child abuse involving four minor girls: T.P., M.K., E.M., and E.A. A jury found Knutson guilty of the charges involving E.A., but acquitted him of the charges involving the other three girls. The issues are whether (1) a joint trial on the offenses was proper, (2) Knutson's cell phone records should have been suppressed because the State obtained them by subpoena, and (3) the evidence was sufficient to support Knutson's convictions. We conclude that the court properly joined the offenses and correctly denied Knutson's motion to suppress his cell phone records. And we conclude that the evidence was sufficient to support Knutson's convictions for child abuse and child enticement for an illegal sexual purpose under Neb. Rev. Stat. § 28-320.02 (Cum. Supp. 2012). We affirm.
Knutson taught at a public middle school in Omaha, Nebraska. T.P., M.K., and E.M. were students of Knutson when the alleged misconduct occurred. E.A. was not one of Knutson's students at the school, though she had attended school there and knew him. When E.A. moved on to high school, Knutson tutored her during her freshman and sophomore years, the period during which the alleged misconduct occurred.
1. Complaining Witnesses' Reports and Subsequent Investigation
In November 2009, T.P. reported Knutson to school officials for sexually inappropriate conduct. Following an internal investigation, school officials determined that there was no substance to T.P.'s allegations and she was moved to a [288 Neb. 826] different school. In December, M.K. reported Knutson to school officials for sexually inappropriate conduct. While conducting an investigation, Knutson was put on leave, but once school officials concluded there was no criminal conduct, they allowed him to return to teach. School officials did not forward either T.P.'s or M.K.'s allegations to the police.
In October 2010, E.M. reported Knutson to school officials for sexually inappropriate conduct. Soon after, E.M.'s mother reported Knutson to Child Protective Services, which led to a police investigation. During the investigation, E.A.'s name came up and police interviewed her. She initially denied any relationship or anything inappropriate happening between her and Knutson. But investigators obtained Knutson's cell phone records, which revealed that he had thousands of telephone contacts with E.A. When confronted with the cell phone records, and after seeing Knutson on the news, E.A. admitted to prosecutors that she and Knutson had been in a relationship.
2. Charges and Pretrial Motions
The State charged Knutson with sexual assault and child abuse involving the four girls. Before trial, Knutson moved to sever the charges. In his motion, Knutson argued that the charges were not joinable under Neb. Rev. Stat. § 29-2002(1) (Reissue 2008) and that, even if they were, joinder
would prejudice him. But the court determined that the charges were of the same or similar character and that evidence of the alleged acts would be admissible against Knutson in separate trials. The court denied Knutson's motion to sever.
Before trial, Knutson also moved to suppress his cell phone records, which the State had obtained by subpoena. In his motion, Knutson argued that the State's use of subpoenas was improper because it violated both his constitutional right to be free from unreasonable searches and seizures and Nebraska statutory law. The court concluded, however, that because Knutson had no expectation of privacy in the records, the State's subpoenaing them did not violate Knutson's Fourth Amendment rights. And the court concluded that the State's [288 Neb. 827] use of subpoenas to obtain the records complied with state statutes. It overruled Knutson's motion to suppress.
3. Trial Testimony, Jury Verdicts, and Sentencing
Although the jury found Knutson guilty only of the charges involving E.A., it is necessary to summarize the testimony related to the other charges because it is relevant to the joinder issue. T.P. testified that Knutson would tell her she was pretty and beautiful, that he would ask her about her breasts and whether he could feel them, and that he later threatened to lower her grades if she did not show him her breasts. T.P. also testified about incidents when she participated on the football team and when she was a manager for the basketball team. Knutson coached both teams. T.P. testified that Knutson had asked her for oral sex and that he had " put his gym shorts, like, right up to [her] face." T.P. eventually told her stepmother and reported Knutson to school officials. Initially, however, T.P. did not report all the facts that she later stated at trial.
M.K. testified that during class, Knutson took her cell phone, looked through her cell phone pictures, and pointed to one and said, " 'I like this one'" or " 'I like these,' " which M.K. took to mean her breasts. M.K. also testified that she asked Knutson for help while struggling with a test after school. M.K. testified that Knutson told her that " '[a] picture of you will get you a B.'" And M.K. testified that the next day, Knutson asked for her cell phone again and that she refused. This led to her being referred to the administrator's office, where M.K. eventually reported Knutson.
E.M. testified that she and Knutson were close and that he called her " sexy," beautiful, and pretty. E.M. testified that Knutson had brushed her breasts with his hand, that he had patted her hip, and that he had made sexually inappropriate comments and gestures. For example, E.M. testified that one day she whispered to Knutson that his zipper was down and that he told her if she ever wanted to see " it," all she had to do was ask. E.M. did not report Knutson immediately because she was [288 Neb. 828] scared, but she did end up reporting him to school officials, though she did not provide the same level of detail as she did at trial. Her mother called Child Protective Services, which led the police to become involved.
E.A. testified that although she was never a student in Knutson's class, she knew him from her time at the middle school. She testified that the summer before her freshman year in high school, she worked at the middle school teaching swimming and that she grew close to Knutson. She explained that during the second semester of her freshman year, she approached Knutson about tutoring her, which he agreed to do. Knutson tutored her after school in his classroom, several times a week. This arrangement continued into
E.A.'s sophomore year. E.A. testified that their relationship was much more than that of a tutor and student.
At some point during this period, E.A. told Knutson that she had feelings for him, and she testified that he told her he also had feelings for her. She testified that their relationship turned physical and that it involved touching, hugging, and kissing. She explained that as the relationship became more serious, he would touch her chest and genital area and she would do the same to him. The physical interactions apparently always occurred in Knutson's classroom, after school. E.A. testified that she and Knutson would talk or text every day, all day, and that she told him she loved him and that he also told her he loved her. They agreed several times, over the telephone and in person, that they were both ready to " take it to the next level," which she testified meant having sex, although they never actually had sexual intercourse. E.A. also testified that Knutson asked her for " sexy" pictures of herself and that she sent to him a picture of her breasts covered with a bra.
Other witnesses also testified, including teachers and administrators from the middle school and the Omaha Public School District. The testimony covered the school's physical layout, including classroom configurations, the school's investigation policy at the time (internal investigations by the human resources department are not always reported to police), and the school's actual investigations of the girls' allegations. The testimony covered teaching methods, coaching responsibilities, [288 Neb. 829] and rules and practices regarding cell phone use at school. A crime analyst also testified regarding the cell phone records and contacts between E.A. and Knutson. In short, the analyst explained that there were over 26,000 telephone contacts between the two in about a year's time and that the contacts occurred nearly every day and at all hours of the day, including early morning and late at night.
The jury acquitted Knutson of the charges involving T.P., M.K., and E.M. But the jury convicted Knutson of the charges involving E.A., which included child abuse and child enticement for an illegal sexual purpose through the use of an electronic communication device. The court sentenced Knutson to 8 to 12 years in prison for the child enticement conviction and 1 to 2 years in prison on the child abuse conviction, with the sentences to run consecutively. The court also ordered Knutson to register as a sex offender.
III. ASSIGNMENTS OF ERROR
Knutson assigns, restated and consolidated, that the district court erred in (1) denying Knutson's motion to sever the charges and joining them all in a single trial and (2) denying Knutson's motion to suppress the cell phone records because the State violated his Fourth Amendment rights and because the State's subpoenas did not comply with Nebraska ...