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State v. Cheloha

Court of Appeals of Nebraska

January 9, 2018

State of Nebraska, appellee,
v.
Jacob T. Cheloha, appellant.

         1. Trial: Juries: Evidence. The trial judge has discretion to allow the jury to reexamine evidence during deliberations.

         2. __:__:__. Trial courts have broad discretion in allowing the jury to have unlimited access to properly received exhibits that constitute substantive evidence of the defendant's guilt.

         3. Trial: Juries: Evidence: Appeal and Error. A trial court's decision to allow a jury during deliberations to rehear or review evidence, whether such evidence is testimonial or nontestimonial, is reviewed by an appellate court for an abuse of discretion.

         4. Trial: Evidence. Testimonial evidence refers to trial evidence, including live oral examinations, affidavits and depositions in lieu of live testimony, and tapes of examinations conducted prior to the time of trial for use at trial in accordance with procedures provided by law.

         5. __:__. Heightened standards which require the trial court to weigh the probative value of the testimony against the danger of undue emphasis and allow the court to strictly control the procedures for reviewing tape-recorded evidence apply only to testimonial evidence.

         6. Pretrial Procedure: Trial: Evidence: Appeal and Error. Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is offered at trial in order to preserve any error for appellate review.

         7. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. The failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal.

         8. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on some other ground not specified at trial.

          [25 Neb.App. 404] 9. 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.

         10. 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).

         11. __:__. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.

         12. __:__.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.

         13. __: __ . The hearsay rule does not exclude statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

         14. __:__. The hearsay exception for statements made for the purpose of medical diagnosis or treatment 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.

         15. Rules of Evidence: Hearsay: Police Officers and Sheriffs. A statement is generally considered admissible under the medical purpose hearsay exception if gathered for dual medical and investigatory purposes, and even the declarant's knowledge that law enforcement is observing or listening to the statements does not necessarily preclude admissibility of a statement as being for a medical purpose.

         16. Rules of Evidence: Hearsay. In applying the hearsay exception for statements made for the purpose of diagnosis or treatment, the fundamental inquiry to determine whether the statement, despite its dual purpose, was made in legitimate and reasonable contemplation of medical diagnosis or treatment, because if the challenged statement has some value in diagnosis or treatment, 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.

         17.__: __ . Statements having a dual medical and investigatory purpose are admissible under the hearsay exception for statements made for the purpose of medical diagnosis or treatment only if the proponent [25 Neb.App. 405] 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.

         18. __: __ . Under the hearsay exception for statements made for the purpose of medical diagnosis or treatment, the appropriate state of mind of the declarant may be reasonably inferred from the circumstances.

         19. Criminal Law: Intent: Intoxication. Voluntary intoxication is not a defense to any criminal offense and shall not be taken into consideration in determining the existence of a mental state that is an element of the criminal offense.

         20. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

         21. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

         22. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         23. Sexual Assault: Words and Phrases. A person commits third degree sexual assault of a child if he or she subjects another person 14 years of age or younger to sexual contact and the actor is at least 19 years of age or older and does not cause serious personal injury to the victim.

         24.__: __. Sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts and includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.

         25. Sexual Assault: Proof. Whether there is sufficient evidence to prove sexual arousal or gratification (which, by necessity, must generally be inferred from the surrounding circumstances), is extraordinarily fact driven.

         26. __:__. The relevant question in determining whether there is sufficient evidence to prove sexual arousal or gratification for purposes of third degree sexual assault 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.

         27. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.

          [25 Neb.App. 406] 28. Trial: Prosecuting Attorneys. A prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant, and a lawyer shall not, in trial, state a personal opinion as to the credibility of a witness or the guilt or innocence of an accused.

         29. __:__. When a prosecutor's comments rest on reasonably drawn inferences from the evidence, the prosecutor is permitted to present a spirited summation that a defense theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and the defense.

         30. __:__. In cases where the prosecutor comments on the theory of defense, the defendant's veracity, or the defendant's guilt, the prosecutor crosses the line into misconduct only if the prosecutor's comments are expressions of the ...


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