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State v. Smith

Supreme Court of Nebraska

January 15, 2016

State of Nebraska, appellee,
Kelvin L. Smith, appellant.

1. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court's ruling on authentication for abuse of discretion.

2. Trial: Witnesses: Testimony: Appeal and Error. An appellate court reviews a trial court's allowance of leading questions for an abuse of discretion.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

4. 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.

5. ___:___. When judicial discretion is not a factor, whether the underlying facts satisfy the legal rules governing the admissibility of such evidence is a question of law, subject to de novo review.

6. Convictions: Evidence: Appeal and Error. When reviewing the sufficiency of the evidence to sustain a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or reweigh the evidence; such matters are for the finder of fact. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

7. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

[292 Neb. 435] 8. Constitutional Law: Criminal Law: Jury Trials. Whether cumulative error deprived a criminal defendant of his or her Sixth Amendment right to a trial by an impartial jury presents a question of law to be reviewed de novo.

9. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the court below.

10. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

11. Appeal and Error. Appellate review is limited to those errors specifically assigned as error in an appeal to a higher appellate court.

12. Trial: Evidence: Appeal and Error. An objection on the basis of insufficient foundation is a general objection, which requires the court to engage in interpretation on appeal, rather than be apprised of the real basis for the objection.

13. ___::___.___. A party may not normally complain on appeal for an overruled foundation objection unless the grounds for the exclusion are obvious without stating it.

14. Trial: Evidence. Whether there is sufficient foundation evidence for the admission of physical evidence must necessarily be determined by the trial court on a case-by-case basis.

15. Trial: Evidence: Appeal and Error. A trial court's determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of discretion.

16. Criminal Law: Trial: Witnesses. A trial court in a criminal case has a large, though not unlimited, discretion in granting or refusing permission to ask a witness a leading question.

17. Trial: Witnesses: Testimony: Appeal and Error. An appellate court reviews a trial court's allowance of leading questions for an abuse of discretion.

18. Trial: Witnesses: Testimony. The concern with the use of leading questions during direct examination is that a witness already giving favorable testimony to a party may testify to facts suggested to the witness, rather than those personally known by the witness.

19. Evidence: Proof. A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims.

20. Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, [292 Neb. 436] whether the guilty verdict rendered in the trial was surely unattributable to the error.

21. Rules of Evidence: Witnesses: Testimony. To constitute a prior consistent statement for purposes of Neb. Evid. R. 801(4)(a)(ii), Neb. Rev. Stat. § 27-801(4)(a)(ii) (Reissue 2008), the out-of-court statement must be consistent with the in-court testimony recently charged with being fabricated.

22. ___:___:___. That witnesses' memories conflict as to when, where, or how statements were made may be relevant to the credibility of the witnesses' testimony, but it is not relevant for purposes of analyzing whether an out-of-court statement is a prior consistent statement under Neb. Evid. R. 801(4)(a)(ii), Neb. Rev. Stat. § 27-801 (4)(a)(ii) (Reissue 2008).

23. Appeal and Error. For an alleged error to be considered by an appellate court, an appellant must both assign and specifically argue an alleged error.

24. ___. An argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it.

25. Criminal Law: Minors: Sexual Misconduct: Proof: Words and Phrases. In order to show "erotic nudity" as defined in Neb. Rev. Stat. § 28-1463.02 (Reissue 2008), the State must prove, first, that the depiction at issue displays a human's genitals or human's pubic area or female's breast area, and second, that the depiction was created for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved.

26. Criminal Law: Minors: Sexual Misconduct: Photographs. Determination of whether a defendant took pictures for purposes of real or simulated overt sexual gratification or sexual stimulation should include consideration of whether (1) the focal point of the visual depiction is on a child's genitalia or pubic area; (2) the setting of the visual depiction is sexually suggestive; (3) the child is depicted in an unnatural pose or in an inappropriate attire, considering the age of the child; (4) the child is clothed; (5) the visual depiction suggests sexual coyness or willingness to engage in sexual activity; and (6) the visual depiction is intended or designed to elicit sexual response in the viewer.

27. ___:___: ___:___. In prosecutions under the Child Pornography Prevention Act, the sexual nature of a photograph is not determined solely from the subject of the photograph, but from the motives of the persons generating it.

28. ___:___:___:___. A defendant can be found guilty of creating or possessing child pornography beyond a reasonable doubt even when the actual depiction at issue is unavailable at trial.

[292 Neb. 437] 29. Circumstantial Evidence. Circumstantial evidence is not inherently less probative than direct evidence.

30. Criminal Law: Sexual Misconduct: Photographs. Whether a photograph was created for the purpose of sexual gratification or stimulation must be determined, not only from the depiction, but from the motive of the persons generating it.

31. Criminal Law: Sexual Misconduct: Circumstantial Evidence: Photographs: Intent. A trier of fact may consider circumstantial evidence of a defendant's intent in determining whether a depiction was created for overt sexual gratification or sexual stimulation.

32. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclosure by the prosecution of material evidence favorable to the defendant, requested by the defendant, violates due process, irrespective of the good faith or bad faith of the prosecution. But due process is not violated where the evidence is disclosed during trial.

33. Criminal Law: Motions for Continuance: Evidence: Waiver. If a continuance would have been a sufficient remedy for a belated disclosure in violation of Neb. Rev. Stat. § 29-1912 (Reissue 2008), a defendant who fails to request a continuance waives any rights he or she may have had pursuant to § 29-1912.

34. Criminal Law: Prosecuting Attorneys: Witnesses: Indictments and Informations: Time. Neb. Rev. Stat. § 29-1602 (Reissue 2008) generally requires the prosecution to endorse the names of all known witnesses in the information at the time it is filed, but permits the endorsement of additional witnesses up to and including 30 days prior to trial.

35. Trial: Witnesses: Indictments and Informations: Time. Atrial court, in the exercise of its discretion, may permit additional witnesses to be endorsed within the 30 days before trial and even after the trial has begun, provided doing so does not prejudice the rights of the defendant.

36. Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

37. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

38. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

39. Statutes: Intent. In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the [292 Neb. 438] purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.

40. Criminal Law: Sexual Assault: Minors: Records: Proof. For purposes of Neb. Rev. Stat. §§ 28-319.01 (Cum. Supp. 2014) and 28-320.01 (Reissue 2008), a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and commitment.

41. Rules of Evidence: Records: Proof. Copies of judicial records that are certified by a deputy clerk for the clerk of the district court and impressed with the court's seal do not require extrinsic evidence of authenticity for admission under Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 2008).

Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.

Thomas P. Strigenz, Sarpy County Public Defender, and April L. O'Loughlin for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Connolly, McCormack, Miller-Lerman, Cassel, and Stacy, JJ.



Kelvin L. Smith was convicted in a jury trial of two counts of first degree sexual assault of a child; three counts of third degree sexual assault of a child; three counts of incest; three counts of visual depiction of sexually explicit conduct; and one count of child abuse. Three of the sexual assault charges were charged as second offenses, which, pursuant to Neb. Rev. Stat. § 28-319.01(3) (Cum. Supp. 2014), enhanced Smith's penalty to a mandatory minimum sentence of 25 years in prison. In total, Smith was sentenced to 41 to 110 years of imprisonment, [292 Neb. 439] 35 of those years being "hard" years, for which there is no possibility of parole. Smith appeals both his convictions and sentences, assigning 12 errors.


Smith and lennifer Smith met and began dating in April 2004. In late April or May, Smith moved into lennifer's apartment in Council Bluffs, Iowa, with lennifer and her two daughters, S.D. and A.L., who were 9 and 6 years old at the time. Smith and lennifer were married in lune 2004. They conceived a son, who was born in September 2010.

On August 6, 2013, Child Protective Services received a child sexual abuse report with regard to S.D., A.L., and the Smiths' son. As a result of the report, a caseworker went to the Smiths' apartment to interview each family member. Based on disclosures made by A.L., the case was turned over to a detective. On August 12, the detective questioned Smith, and then placed him under arrest. On October 22, Smith was formally charged with offenses of which he was later convicted.

S.D. and A.L. both testified at Smith's trial that Smith sexually assaulted them. Although they could not testify to the exact dates for each of the alleged incidents, the girls described their experiences in terms of where they were living at the time. Thus, it becomes relevant that the family moved to La Vista, Nebraska, in 2005 and to Bellevue, Nebraska, in 2007.

1. S.D.

At trial, S.D., then 19 years old, testified that Smith began sexually assaulting her when she was 10 years old and the family was living in La Vista. She testified that the first incident occurred one day while her mother and sister were gone. Smith called S.D. into his bedroom, grabbed her by the wrist and took her clothes off despite her asking him to stop. S.D. testified that Smith pulled her down to the bed, pulled down his pants, got on top of her, spread her legs open, and put his penis inside her. S.D. testified that incidents like the one she [292 Neb. 440] described occurred multiple times a month while they lived in La Vista. S.D. said she never told her mother because Smith told her not to and told her that it would upset her mother.

S.D. testified that the sexual assaults began to occur more frequently after the family moved to Bellevue in 2007. She testified that a couple of times a week, Smith would touch her inappropriately or force her to have oral sex or intercourse with him.

When S.D. was 12 or 13 years old, she began to go through puberty and began to grow pubic hair. At trial, S.D. testified that Smith told her she needed to start shaving because he did not like her having hair on her pubic area. She said Smith showed her how to shave; he used a razor on her legs and pubic area without soap or other lubricant and cut her. Although S.D. admitted she sometimes cut her wrists on purpose, S.D. testified that on another occasion, Smith had cut her on the inside of her thighs with a box cutter blade because she did not shave and was "disgusting and ugly." At trial, Dr. Suzanne Haney discussed photographs of S.D.'s thighs, which show scarring consistent with small lacerations that have healed.

(a) Photographs

At trial, S.D. testified that Smith took nude photographs of her on multiple occasions. At trial, S.D. was able to recall specific details about an incident that occurred when she was 13 years old. When asked to describe that incident, S.D. said: He took off my clothes and put me on the bed ....

[He] grabbed hold of my knees and put them in the air and took a picture [of my vaginal area].
. . . There was another one where I was - I was on my hands and knees, and I remember he put his hand on the - on my back and pushed my butt up in the air and took a picture like that.
[292 Neb. 441] . . . There was two more. The other one was - I was on my back, and it was from my neck down.
... I can't remember the fourth one.

S.D. testified that she saw the pictures after they were taken. She said that the photograph Smith took of her buttocks showed her vaginal area. S.D. testified that Smith placed the photographs into his photograph album (photo album), where there were also nude photographs of S.D.'s mother.

A detective, Sarah Spizzirri, obtained Smith's photo album from Jennifer after Smith's arrest. At the time Spizzirri obtained the album, it did not contain any photographs of S.D. Instead, there was an empty page where the photographs in question were alleged to have been placed.

Smith's photo album was the kind with peel-back-and-stick contact sheets. At trial, Spizzirri testified about those types of photo albums, and Smith objected on form and foundation grounds throughout that testimony. Spizzirri said she was old enough to remember those types of photo albums and described how to insert a photograph into them. Spizzirri was allowed to testify that a contact sheet that has never been lifted is smooth and one that has been lifted is "all bubbled." When the State asked Spizzirri whether a blank page of Smith's photo album, where explicit photographs of S.D. had allegedly been, was bubbled and appeared to have been used, Smith objected again, and the court, believing the testimony had already been adduced, sustained Smith's objection on the grounds that the question had been asked and answered.

(b) Prior Consistent Statements

S.D. testified that Smith had stopped sexually assaulting her in 2008 when she started dating her first boyfriend, Collin Ryan, whom she dated on and off for 4 years. S.D. testified that one day, while she was ...

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