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State v. Kozisek

Court of Appeals of Nebraska

March 24, 2015


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Appeal from the District Court for York County: ALAN G. GLESS, Judge, and J. PATRICK MULLEN, Judge, Retired.

Mark E. Rappl for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.



[22 Neb.App. 807] Riedmdmann, Judge.

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Ryan E. Kozisek was convicted in the district court for York County of intentional child abuse resulting in death. He appeals, arguing that his motion for new trial should have been granted because of the erroneous admission of opinion testimony and improper rebuttal evidence. He also claims that the district court erred in overruling his objection to a demonstrative video. We agree that the district court abused its discretion in overruling the motion for new trial, because the admission of the opinion testimony constituted prejudicial error. We therefore reverse, and remand for a new trial.


Kozisek was charged with intentional child abuse resulting in death following the death of his 4-month-old daughter, Kaley Kozisek (Kaley). Kozisek married Kassandra Roper (Kassandra) in 2008. Their

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first daughter was born in January 2009, and their second daughter, Kaley, was born in September 2010. Kozisek was disappointed when he and Kassandra found out their second child would be a girl, and he became " [m]ore stressed [and d]epressed" after Kaley was born. He did not understand why Kaley cried so much, and Kassandra recalled him saying that he " hated" Kaley. He also told a coworker that he " hated" Kaley and told another coworker that Kaley cried so much that he felt like " shaking [her] to the point where [she] would stop crying."

Kaley had " milk and soy protein intolerance [and] spit up a lot" during feedings. Kassandra described her as a " [f]ussy" eater, but otherwise, as generally healthy. Kaley contracted the stomach flu in early January 2011, however, so Kassandra called the pediatrician because Kaley was vomiting. Around that same time, Kassandra noticed an indentation on the back of Kaley's head and mentioned it to the pediatrician when Kaley was in her office on January 17. Kaley also saw her pediatrician on January 21 for her 4-month checkup. At that visit, she was bright-eyed, very alert, developing appropriately, and breathing comfortably. According to Kassandra, Kaley was also " fine" on January 22 and 23 and played with toys, [22 Neb.App. 808] giggled, and smiled. Kaley was still fussy during feedings, but according to Kassandra, that was normal for her.

Kozisek quit his job in January 2011, forcing Kassandra to find employment while Kozisek stayed home with his daughters. On Kassandra's first day of work, January 24, she got up around 3 a.m., and before leaving for work, she checked on Kaley, who was sleeping " perfectly fine." When she called home around 10 a.m., Kozisek said Kaley was " breathing kind of funny" and put the telephone up to Kaley so Kassandra could hear her breathing. Kassandra thought Kaley sounded " a little bit different," but she was not too concerned and said she would look at Kaley when she got home around 1 p.m. At 12:18 p.m., Kozisek called the 911 emergency dispatch service and reported that Kaley was barely breathing, limp, and starting to turn blue.

When emergency medical services initially arrived, Kaley was unresponsive and did not have a pulse. She was initially taken to a hospital in York, Nebraska, and then shortly thereafter, she was " life-flighted" to a hospital in Omaha, Nebraska. Kaley died the following day.

At trial, the State called several expert witnesses who testified that Kaley's injuries were not caused accidentally. An ophthalmologist who examined Kaley at the hospital in Omaha observed extensive hemorrhaging in the back of her eyes. He opined that the cause of Kaley's injuries was nonaccidental trauma and could think of no other causes that would explain Kaley's retinal hemorrhaging.

A child abuse pediatrician also examined Kaley at the hospital in Omaha. She noticed that Kaley's eyes were fixed and widely dilated, which is an indication of severe brain injury. Because Kaley's eyes were so widely dilated, the child abuse pediatrician could look through the pupils and see the back of Kaley's eyes, where she " very clearly" observed blood. A CT scan showed evidence of severe brain injury. The back of Kaley's skull was depressed, an injury that is referred to as a " ping pong skull fracture" (ping pong fracture), because it looks like the indentation that occurs when " a ping pong ball [is] pushed in." Kaley also had bleeding between her brain and skull all around, including fresh blood, and severe swelling to [22 Neb.App. 809] the brain. According to the child abuse pediatrician, it was not the blood or blood pressure in Kaley's brain that caused her

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to be ill, but her brain had been damaged by the same force that caused the bleeding. In the child abuse pediatrician's opinion, Kaley suffered from abusive head trauma and the injury occurred after the night of January 23, 2011.

Finally, the coroner's physician who performed the autopsy on Kaley on January 26, 2011, testified during the State's case in chief. He observed a cluster of bruises on the top of Kaley's head, as well as fresh blood, which is a manifestation of blunt force trauma. He also observed a subdural hemorrhage and subarachnoid hemorrhage, meaning she had bleeding in the connective tissues between the scalp and the brain. He further found bleeding around the optic nerves in both of her eyes extending into the retinas. The coroner's physician concluded that parts of the subdural hematoma were at least 3 days old; however, the subarachnoid hemorrhage, retinal hemorrhages, and bruising on the top of the head were no more than 1 day old. The coroner's physician opined that Kaley's cause of death was blunt force trauma to the head and brain.

Kassandra was called as a witness for the State. During her direct examination, the following exchange occurred:

Q Now during the interview with the state patrol . . . you continually denied that - - 100 percent that . . . Kozisek would have anything to do with ...

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