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State v. Draper

Supreme Court of Nebraska

October 28, 2016

State of Nebraska, appellee,
Peter Francis Draper, appellant.

         1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.

         2. 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.

         3. 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.

         4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         6. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, an appellate court does not pass on the credibility of witnesses-that is for the trier of fact.

         7. _: _: In reviewing a sufficiency of the evidence claim, the relevant question for an appellate court 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.

         [295 Neb. 89] 8. Convictions: Witnesses. A defendant's conviction of a crime may be based on uncorroborated testimony of a single witness.

         9. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually 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 whether the actual guilty verdict rendered was surely unattributable to the error.

         10. Trial: Evidence: Appeal and Error. Generally, erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

         11. Sentences: Appeal and Error. In reviewing a sentence imposed within the statutory limits, an appellate court considers 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.

         12. Sentences. When imposing a sentence, the sentencing court is to consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         13. _ . Traditionally, a sentencing court is accorded very wide discretion in determining an appropriate sentence.

         Appeal from the District Court for Franklin County: Stephen R. Illingworth, Judge. Affirmed.

          Charles D. Brewster, of Anderson, Klein, Brewster & Brandt, for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          CASSEL, J.


         In this direct appeal, Peter Francis Draper challenges his convictions for intentional child abuse resulting in death and [295 Neb. 90] intentional child abuse resulting in serious bodily injury. He alleges that there was insufficient evidence to support either conviction, that improper opinion and rule 404[1] testimony was allowed into evidence, and that he received excessive sentences. Finding no merit in his arguments, we affirm.


         Draper was convicted of intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury in connection with the untimely death of his 2-year-old grandson. For the second time, Draper has appealed these convictions to this court. On the first direct appeal, after finding cumulative error concerning the testimony of Draper's wife, Nancy Draper (Nancy), we reversed Draper's convictions and remanded the cause for a new trial.[2] The case is now before us on direct appeal from the second trial. We briefly summarize those proceedings.

         1. Joe Jr.'s Injuries and Death

         Joseph Rinehart, Ir. (Joe Ir.), died on April 30, 2012. He was 2 years old. At the time of his death, Joe Ir. lived with his mother, Laura Rinehart (Rinehart), his maternal grandparents, Draper and Nancy, and his three siblings in a small three-bedroom trailer home. Joe Ir.'s father was separated from Rinehart and had not had contact with Joe Ir. or any of the Rinehart children for the year leading up to Joe Ir.'s death. At all times when Joe Ir. would have sustained his injuries, the only adults to have unchecked access to him were Rinehart, Draper, and Nancy.

         On April 30, 2012, at approximately 6 p.m., Joe Ir. was brought to the community hospital by Rinehart and Nancy after Rinehart noticed red in his vomit. He had shown flulike symptoms-lethargy, diarrhea, and vomiting-for the last [295 Neb. 91] several days. At the hospital, the physician on call performed an examination and concluded that the child had a swollen stomach. The physician then ordered an x ray of his abdomen to determine the cause of the swelling. The x ray showed no signs of injuries but did show possible signs of constipation. At that point, the physician treated Joe Jr. for constipation and sent him home.

         Approximately 1 hour after Joe Jr. was discharged from the hospital, Rinehart and Nancy brought him back to the emergency room. He was not breathing and had no heartbeat. The hospital staff attempted to revive him for 45 minutes but were never able to find a heartbeat. The treating physician declared Joe Jr.'s time of death at approximately 8:41 p.m.

         Because the cause of death was unexplained, the hospital staff notified law enforcement of Joe Jr.'s death. Law enforcement officials then initiated a death investigation for the purpose of collecting information to determine the cause of death.

         Law enforcement officials interviewed Rinehart, Draper, and Nancy late in the evening on April 30, 2012. At no point did Rinehart or Draper mention concerns of abuse. Draper did tell the interviewing officer that he believed the autopsy would show no signs of violence but may show signs of a rare "bone disease."

         An autopsy was performed on Joe Jr., and the pathologist concluded that the cause of death was multiple blunt force trauma of the head, trunk, and extremities. The manner of death was ruled to be homicide. Post mortem CT scans showed old rib fractures, a recent skull fracture, a recent pelvic fracture, strain injuries on the arms and shoulders, and a ruptured bowel. The perforated bowel was likely associated with the recent pelvic fracture.

         Medical experts determined that these injuries were likely the result of abuse or outer trauma, because Joe Jr. did not have any bone disease or other contributing disability. The pathologist who performed the autopsy additionally identified [295 Neb. 92] several bruises on the child's knees, elbows, shoulders, and thighs and dated several of them as less than 24 hours old.

         2. Arrest and Charges

         After the autopsy, law enforcement officials interviewed Rinehart, Draper, and Nancy again and ultimately arrested all three. The lead investigator noted probable cause arose "based on the amount of injury on [Joe Jr.], [and] given the small size of the residence, ... it was [not] reasonable that there could be that amount of injury to a small child and any of the adults wouldn't have some knowledge that that was occurring." Once detained, Rinehart shared her belief that Draper had abused Joe Jr. She then entered a plea agreement with the State for a reduced charge in exchange for testifying against Draper at trial. Based on this information, Draper was subsequently charged with child abuse resulting in death, allegedly committed on or between April 23 and 30, 2012, as well as child abuse resulting in serious bodily injury on or between July 12, 2011, and April 22, 2012.

         3. Trial Evidence

         At trial, the State presented testimony of several health professionals to describe Joe Jr.'s various injuries and the possible sources of the injuries. None of the professionals were able to point to a particular individual who committed the abuse. Rinehart was the only witness to specifically testify to Draper's alleged physical abuse of Joe Jr. and to explain the events leading up to his death. Several other witnesses also testified to their interactions with Draper to confirm his control of the household and substantiate Rinehart's claims. Draper did not testify in his behalf or present any witnesses of his own.

         (a) Rinehart's Testimony

         Rinehart testified that after her husband left the home, Draper became the primary disciplinarian of her children. His disciplinary techniques supposedly included timeouts that [295 Neb. 93] could last from "a couple minutes to a couple hours to a couple of days." Rinehart's other children, aged 4 to 8 at the time of the trial, would be "disciplined" for crying and would be made to stand in a corner and sometimes would have to lift weights over their heads.

         According to Rinehart, Draper generally handled Joe Jr. roughly-dragging him or yanking him by the arm. She also described specific instances of physical abuse of Joe Jr. by Draper. She testified that Draper once pushed Joe Jr. down repeatedly so that his head hit the floor until the child's head was swollen and his eyes were black and blue. On that occasion, Rinehart was not allowed to ...

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