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State v. McMillion

Court of Appeals of Nebraska

March 1, 2016


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Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge.

Thomas P. Strigenz, Sarpy County Public Defender, and Colleen Hassett for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.



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[23 Neb.App. 694] Riedmann, Judge.


Candice M. McMillion was convicted in the Sarpy County District Court of first degree sexual assault of a child under 12, incest, two counts of visual depiction of sexually explicit conduct, and child abuse. She appeals, assigning numerous errors with respect to her convictions and sentences. We affirm.


1. Events Surrounding Charges

McMillion has been married to her husband, Caleb McMillion (Caleb), since March 2007. Their son, S.M., was born in August 2007. In late September 2012, after getting into an argument with Caleb, McMillion told her father-in-law that she had " put her mouth on [S.M.] a couple of times" and that she did so, in order to save her marriage, because Caleb " was into that." McMillion told him that Caleb had done similar acts to S.M. Shortly after their conversation ended, McMillion sent a text message to her mother-in-law and recanted. She said that she had lied and made up what she said to hurt Caleb. S.M. underwent a forensic interview at the time but did not disclose any abuse. He was removed from McMillion and Caleb's home in early October, however, due to domestic violence issues, and was placed with his paternal grandparents.

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Because S.M. was acting out and displaying inappropriate behaviors, in January 2013, he began attending weekly therapy sessions with Amanda Gurock, a licensed independent mental health practitioner. After the first session, Gurock diagnosed S.M. with adjustment disorder with a disturbance of mixed emotions and conduct and anxiety disorder, not otherwise specified. Gurock also diagnosed S.M. with anxiety disorder because he was fidgety, had a lot of nervousness, had fears of different situations, and had bad dreams.

On February 18, 2013, S.M. disclosed to Gurock that he had been sexually abused by McMillion and Caleb numerous [23 Neb.App. 695] times between the ages of 3 and 5. He specifically described the abuse, including that McMillion performed oral sex on him and forced him to do the same to her. S.M. underwent a forensic interview at Project Harmony, a child advocacy center, on February 20. Based on the information S.M. provided to Gurock and the forensic interviewer, McMillion was arrested and ultimately charged with count I, first degree sexual assault of a child under 12; count II, incest; counts III and IV, visual depiction of sexually explicit conduct; and count V, child abuse. Caleb was also arrested and charged with similar offenses.

2. Pretrial Motions

(a) Motion in Limine

Prior to trial, McMillion filed a motion in limine to prohibit the State from eliciting testimony of the statements S.M. made to Gurock and the Project Harmony interviewer. At a hearing on the motion, Gurock testified that she takes notes during her sessions with S.M. to remind herself what they talked about. The notes that are kept in the official file are general due to concerns about confidentiality, and they generally indicate what occurred at each session. However, Gurock also takes handwritten notes in a notebook where she writes down " a couple of words," and those notes are not kept in the official file. Gurock indicated that she reviewed her handwritten notes in preparation of giving testimony at the hearing.

Based on Gurock's admission that she refreshed her recollection with her handwritten notes prior to testifying, McMillion requested during the hearing that the court order Gurock to turn over her notes. The court observed that there had been no refreshing of recollection in the courtroom, and the notes had not been utilized during testimony. Thus, the court declined to order Gurock to produce her notes.

In a later written order, the district court ruled on McMillion's motion in limine, finding that the statements S.M. made during therapy sessions fall under an exception to the hearsay rule and [23 Neb.App. 696] are therefore admissible. The court also found that the statements S.M. made during the Project Harmony interview would be admissible only if S.M. testified at trial.

(b) Motion to Suppress

At the time Caleb was arrested, police seized the cell phone he had with him, which contained a memory card. Police applied for and received a search warrant for the phone and its memory card and ultimately searched them.

McMillion filed a motion to suppress the search of the cell phone and memory card. At the suppression hearing, Det. Roy Howell testified that after receiving the search warrant, he made a bit-by-bit physical copy of the memory card contained in the phone. He explained that the file structure of the type of memory card in Caleb's phone is specific to the phone. On the memory card taken out of Caleb's phone, Howell found a " Mobo folder," which is associated with an application that was downloaded onto the phone. The

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Mobo folder is specific to Caleb's phone. Inside the Mobo folder, Howell discovered two photographs of McMillion performing oral sex on S.M. The photographs are still shots derived from two videos, but the videos were never recovered.

Caleb testified at the suppression hearing that he and McMillion separated in September 2012 but maintained frequent contact during their separation. They jointly owned approximately five similar memory cards, but from the time they separated until their arrests, Caleb had no access to the memory card in McMillion's cell phone and she had no access to his phone's memory card. He considered the memory card found in his phone at the time of arrest, from which the photographs were recovered, to be his memory card. That particular memory card contained data associated with Caleb's e-mail account and other personal folders and applications that he manually installed on his phone. McMillion and Caleb shared a joint cell phone account, and both paid the bill. Before they separated, McMillion knew the passcode to Caleb's phone " for the most part," but after separation, [23 Neb.App. 697] Caleb changed his passcode often because he did not want McMillion to know it.

McMillion also testified at the suppression hearing and said that even after she and Caleb separated, she still had the opportunity to use his cell phone. She also acknowledged telling her grandmother that she did not know what was on Caleb's phone because he always had it locked and hid it from her. However, she testified that even if she did not know Caleb's passcode, she was able to bypass it and access his phone by inputting his e-mail address and changing his passcode.

In its subsequent order, the district court observed that the search warrant authorized the search of the cell phone and its memory card. The phone and memory card are specifically described in the warrant as belonging to Caleb, from whom they were seized at the time of his arrest. The memory card contained items specifically belonging to Caleb but no items belonging to McMillion. The court therefore determined that McMillion lacked standing to challenge the search of Caleb's phone and memory card, because she did not have a legitimate expectation of privacy in Caleb's phone or memory card. The motion to suppress was therefore denied.

(c) Motion to Withdraw

Before trial commenced, the State filed a motion to endorse additional witnesses, including two individuals that had been represented by McMillion's trial counsel's office. McMillion's trial counsel then filed a motion to withdraw based on a potential conflict of interest. At a hearing on the motion, he indicated that he believed he had a conflict of interest. The court received into evidence affidavits from both potential witnesses waiving attorney-client privilege and waiving any conflict of interest. McMillion and the State also stipulated that there was no relationship between the witnesses' cases and McMillion's case.

The district court found that there was no evidence McMillion's counsel would have divided loyalties which would prevent him from providing effective representation [23 Neb.App. 698] to McMillion and that there was nothing about the witnesses which would detract from his ability to zealously represent McMillion. Therefore, the motion to withdraw was denied.

(d) Motion to Sequester Jury

After the jury had been selected but before opening statements or presentation of any evidence, McMillion moved to sequester the jury during the pendency of trial. The court denied the motion.

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(e) Motion for Mistrial

During opening statements, the State highlighted McMillion's explanations and how her story changed over time. It explained that McMillion initially denied sexually assaulting S.M., but that once the photographs were found on Caleb's cell phone, she could not deny it happened, and her story changed. The prosecutor then said:

It could no longer be it never happened. I was making it all up. It then became other stories and other reasons why this may have happened. She may take the stand and she may try and tell you those stories, those many stories that began after the evidence was found.

At the conclusion of the State's opening statement, McMillion moved for mistrial on the ground that the State improperly referenced McMillion's taking the stand, which violated her constitutional right to remain silent. The motion was denied.

(f) Motion to Remove Juror

After opening statements but prior to the presentation of evidence, the mother of a juror e-mailed a member of the county attorney's office. The mother indicated that her daughter had informed her that the daughter had been selected for a jury, and the mother asked about the daughter's employer's responsibility to pay her while she was serving on the jury. The member of the county attorney's office explained to the judge that the mother was an acquaintance of hers and that she did not respond to the e-mail.

[23 Neb.App. 699] Based on the correspondence, McMillion asked that the juror be removed from the panel and replaced with an alternate. The district court observed that the concern seemed to be that of the mother and that there was no indication in the e-mail that there was any concern expressed by the juror as to the impact of jury service on her employment. The court noted that it had admonished the jurors that they could disclose that they were on a jury but could not talk about the case, and there was no indication in the e-mail that that responsibility was breached. The court also noted that the parties discussed during voir dire this juror's employment and acquaintance with the county attorney, and no motion to strike was made. Therefore, the court denied the request to remove the juror.

3. Trial

Witnesses at trial testified regarding the events leading up to McMillion's arrest. Caleb testified that he had entered into a plea agreement for his charges and volunteered to testify against McMillion to prevent S.M. from being called to testify. He described an incident in June 2012 where he witnessed McMillion performing oral sex on S.M. and recorded a video of it on his cell phone. Caleb also described other pornographic videos he made with McMillion and said that she voluntarily participated in them.

S.M.'s paternal grandparents testified about S.M.'s behavior when he first came to live with them in October 2012. S.M. was exhibiting inappropriate sexual behaviors at preschool and was also violent. S.M. was afraid of McMillion and frequently expressed fear that she would come to hurt his grandparents and " get him."

Gurock testified regarding her role as S.M.'s counselor. She outlined her original diagnoses for him and explained that after he disclosed the sexual abuse to her, she changed his diagnoses to posttraumatic stress disorder, mood disorder not otherwise specified, and attention deficit hyperactivity [23 Neb.App. 700] disorder. She also explained that it is normal for children to delay reporting sexual abuse, in part because they wait until they are comfortable with

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someone and trust him or her enough to say something.

In S.M.'s fifth session with Gurock, he disclosed the sexual abuse, describing the events in detail. S.M. said the sexual abuse occurred when he was between the ages of 3 and 5, when he lived with McMillion and Caleb. He said the abuse happened many times in their bedroom. S.M. reported that Caleb told him not to talk about " inappropriate things," so he was not supposed to tell anyone or he would get soap in his mouth.

McMillion testified in her own defense. She said that she and Caleb had been together since she was 18 years old and that he was physically and verbally abusive during their relationship. Much of the abuse centered on sexual activity which included other partners and participation in " fetish videos." McMillion testified that she acquiesced because Caleb threatened to find someone else if she refused and she wanted to make him happy. ...

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