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State v. Jedlicka

Supreme Court of Nebraska

July 28, 2017

State of Nebraska, Appellee,
v.
Paul J. Jedlicka, appellant.

         1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.

         2. Rules of Evidence: Hearsay. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016).

         3. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court.

         4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.

         5. __:__. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?

         [297 Neb. 277] 6. Appeal and Error. An appellate court does not consider errors which are argued but not assigned.

         7. Rules of Evidence: Hearsay. A declarant's out-of-court statement offered for the truth of the matter asserted is inadmissible unless it falls within a definitional exclusion or statutory exception.

         8. __:__. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), is based on the notion that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment.

         9. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements made by a child victim of sexual abuse to a forensic interviewer in the chain of medical care may be admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), even though the interview has the partial purpose of assisting law enforcement's investigation of the crimes.

         10. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The fundamental inquiry to determine whether statements, made by a declarant who knew law enforcement was listening, had a medical purpose is if the challenged statement has some value in diagnosis or treatment, because the patient would still have the requisite motive for providing the type of sincere and reliable information that is important to that diagnosis and treatment.

         11. Rules of Evidence: Hearsay: Proof. Statements having a dual medical and investigatory purpose are admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), only if the proponent of the statements demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.

         12. Rules of Evidence: Hearsay. Under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the admissibility of a victim's statements in a recording is not distinct from the admissibility of the statements themselves.

         13. Rules of Evidence: Hearsay: Intent. Under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the fundamental inquiry when considering a declarant's intent is whether the statement was made in legitimate and reasonable contemplation of medical diagnosis or treatment.

         14. __: __: __. Under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the appropriate state of mind of the declarant may be reasonably inferred from the circumstances; such a determination is necessarily fact specific.

         [297 Neb. 278] 15. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         16. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.

         17. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         18. __:__. To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

         19. Effectiveness of Counsel: Proof: Presumptions. The two prongs of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel's actions were reasonable.

         20. __:__:__. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), provides narrow exceptions to the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the reliability of the adversarial process is in such doubt that prejudice to the defendant will be presumed, resulting in a conclusion of ineffective assistance of counsel.

         21. Effectiveness of Counsel: Presumptions. Under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039');">104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), there are three circumstances where prejudice to the defendant will be presumed: (1) where the accused is completely denied counsel at a critical stage of the proceedings, (2) where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, and (3) where the surrounding circumstances may justify the presumption of ineffectiveness without inquiry into counsel's actual performance at trial.

         22. Effectiveness of Counsel. The difference between the rule in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the rule in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039');">104 S.Ct. 2039, [297 Neb. 279] 80 L.Ed.2d 657 (1984), is the difference between bad lawyering and no lawyering. 23. . Under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039');">104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for counsel to entirely fail to subject the prosecution's case to meaningful adversarial testing, the attorney's failure must be complete.

         24. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         25. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

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

          Ann C. Addison-Wageman, of Law Office of Ann C. Addison-Wageman, PC, L.L.O., for appellant.

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

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

          FUNKE, J.

         I. NATURE OF CASE

         In this direct appeal, Paul J. Jedlicka challenges his conviction, by jury verdict, for first degree sexual assault of a child under 12 years of age. Jedlicka primarily argues that he was prejudiced by the erroneous admission of hearsay evidence under the medical diagnosis and treatment exception, Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2016). [297 Neb. 280] We conclude that the court properly admitted such evidence under rule 803(3). We also reject Jedlicka's assertions that his trial counsel provided ineffective assistance and that the evidence was insufficient to support his conviction. Therefore, we affirm.

         II. FACTS

         In May 2015, ledlicka was in a relationship with the mother of the 10-year-old victim, M.B., and had been living with M.B., her mother, and her younger brother since the fall of 2014. On May 13, 2015, the mother was working the night shift as an emergency room nurse while ledlicka watched M.B. and her brother. After playing a "scary" video game, M.B.'s brother wanted to sleep with her, but ledlicka suggested both children sleep with him in his and their mother's bedroom. M.B. slept between ledlicka and her brother.

         M.B. testified that she woke up during the night to ledlicka's fingers inside her vagina. She said that she was scared and confused but pretended to be asleep because she did not know what else to do; M.B. did not want ledlicka to know that she knew what was happening so that she could tell someone later. She testified that she knew it was ledlicka, because his hand was bigger than her brother's and she saw that her brother was asleep on his back when she briefly opened her eyes. M.B. said that eventually ledlicka stopped and left the room.

         The next morning, M.B. got ready for school and went to the bus stop with her brother. She said that she did not say anything that morning, because ledlicka was the only adult at the house and she still did not want him to know she had been awake. M.B.'s mother met the children at the bus stop a minute or two before the bus arrived to make sure they got there on time. She said that her son was acting normal, but that M.B. was acting differently, clinging to her rather than playing with the other children. M.B. said that she did not tell her mother, because other people were around.

         [297 Neb. 281] Once M.B. got to school, she told her teacher from the prior year about the incident. The teacher testified at trial that M.B. told her that Jedlicka had touched her privates. As a result, the teacher notified the school psychologist and made a report to Child Protective Services.

         Det. Brandon Stigge reported to the school to investigate the allegation. He testified that M.B. was crying when he arrived and that he told her there were "way smarter" people than he was that would like to talk to her. Stigge called the mother and requested that she come to the school. While waiting for the mother to arrive, he contacted Project Harmony to request a forensic interview.

         After the mother arrived at the school, Stigge told her M.B.'s allegation and explained to her the process that would take place. Stigge recommended that the mother take M.B. to Project Harmony. The mother testified that she took M.B. to Project Harmony voluntarily.

         Project Harmony is a child advocacy center that serves children when there have been allegations of abuse. It provides forensic interview, medical, and mental health services and victim advocacy. Children typically become involved with Project Harmony by referral from law enforcement or Child Protective Services during an active investigation. Law enforcement and Child Protective Services representatives can watch the interviews by closed-circuit television and are provided a DVD of the video-recorded interviews.

         April Anderson is a forensic interviewer at Project Harmony. She has a master's degree in social work and is a licensed mental health practitioner. Anderson has completed numerous training courses for forensic interviewing since she began working at Project Harmony in 2001, including training through the National Children's Advocacy Center (NCAC). She testified that she has conducted over 5, 000 forensic interviews, close to 60 percent of which were in child sexual assault cases. Anderson stated that as a forensic interviewer, she conducts structured conversations with children to gather [297 Neb. 282] information to piece together whether something did or did not happen.

         Anderson testified that she provides the information she learns in her interviews to the nurse practitioner at Project Harmony, Sarah Cleaver, to assist Cleaver in making an appropriate medical diagnosis and in determining any appropriate medical care or mental health treatment the child may need. The information also assists in identifying the perpetrator to ensure the child is not being placed back in the home with the abuser.

         Anderson testified that she met with M.B.'s mother before the interview to gather some background information and explain what was going to take place. Anderson then interviewed M.B. while Stigge and a caseworker observed the interview in an adjacent room by closed-circuit television.

         The DVD of Anderson's interview with M.B. shows that Anderson began the interview by explaining that M.B. was safe and that nobody was going to hurt her. She also told M.B. that "two friends" were watching from another room to make sure Anderson did not forget to ask anything important. Then, Anderson explained the importance of telling the truth and M.B. agreed that she would tell the truth.

         Anderson proceeded to ask M.B. open-ended questions about the abuse, under NCAC protocols. M.B.'s responses were initially vague, but she eventually described the sexual assault in detail. M.B. stated that she had slept with Jedlicka that night and woke up while it was still dark to Jedlicka's fingers inside her vagina.

         After M.B. described the sexual assault, Anderson left the room to consult with Stigge. She testified that Stigge asked her to inquire further about the sleeping arrangement and how M.B. knew it was Jedlicka touching her, but she said that Stigge did not tell her any questions to ask.

         Anderson stated that the information she learned from M.B. was important for her to determine the appropriate followup care and treatment for the child. Before examining M.B., [297 Neb. 283] Cleaver, who was not present to observe the interview, spoke with Anderson to gather information about M.B. Cleaver testified that it was important that she receive an accurate account of the assault, because "[i]t helps guide me during the exam as to where I should look, what kind of injuries I would potentially consider, [and] where I would potentially collect evidence from." She also stated that the information from Anderson assisted her in examining M.B., because she knew to obtain a DNA sample since the assault had occurred within 72 hours.

         Cleaver began M.B.'s examination by asking her what had happened. Specifically, Cleaver inquired about (1) the time of the assault; (2) where M.B. was assaulted; (3) what M.B. may have done since the assault that would have interfered with DNA collection, including showering, urinating, and changing clothing; and (4) if M.B. had experienced pain during the assault.

         Cleaver said the examination could neither confirm nor disprove a sexual assault occurred. She said that based on her training and experience, she would not expect to see any signs of injury based on M.B.'s report of digital penetration. Cleaver did not test for sexually transmitted diseases, because it was not a concern from digital penetration. After Cleaver's examination was complete, M.B. saw a therapist at Project Harmony.

         At trial, Jedlicka objected to the admission of exhibit 2, the Project Harmony video recording of Anderson's interview of M.B., into evidence because it was hearsay. The court overruled Jedlicka's objection, finding that exhibit 2 qualified for the medical exception to hearsay. After the prosecution had concluded its case in chief, Jedlicka moved to dismiss by arguing that no reasonable juror could find that penetration occurred. The court overruled the motion.

         The jury found Jedlicka guilty of first degree sexual assault of a child under 12 years of age. For the sentencing hearing, Jedlicka obtained substitute counsel from his trial. Jedlicka [297 Neb. 284] was sentenced to a term of incarceration of 15 to 25 years. Jedlicka, with substitute counsel, appeals the conviction.

         III. ASSIGNMENTS OF ERROR

         Jedlicka assigns, restated, the following errors: (1) The court erred by admitting hearsay evidence under the medical diagnosis and treatment exception, rule 803(3); (2) his trial counsel was ineffective; and (3) the court erred by overruling his motion to dismiss at the close of the State's case, because there was insufficient evidence to support his conviction.

         IV. STANDARD OF REVIEW

         Apart from rulings under the residual hearsay exception, we will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.[1]

         Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence under rule 803(3).[2]

         An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction ...


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