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State v. Smith

Supreme Court of Nebraska

February 1, 2019

State of Nebraska, appellee,
Jeffery S. Smith, Appellant.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         2. Constitutional Law: Witnesses: Appeal and Error. An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error.

         3. 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. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are 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.

         4. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for 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. 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.

         5. 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.

         [302 Neb. 155] 6. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         7. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.

         8. Constitutional Law: Criminal Law: Trial: Witnesses. While the Confrontation Clause guarantees a criminal defendant a face-to-face meeting with witnesses appearing before the trier of fact, that guarantee is not an absolute right. But while the face-to-face requirement is not absolute, it cannot be disposed of easily.

         9. Constitutional Law: Trial: Witnesses: Public Policy. A defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

         10. Constitutional Law: Trial: Witnesses: Appeal and Error. An unconstitutional denial of face-to-face confrontation, like other types of violations of the Confrontation Clause, is subject to harmless error review.

         11. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial error is of a constitutional dimension, the burden must be on the beneficiary of the error to prove beyond a reasonable doubt that the error did not contribute to the verdict obtained.

         12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately looks to the basis on which the trier of fact 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, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

         13. Effectiveness of Counsel: Postconviction: 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 in a subsequent postconviction proceeding.

         14. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance 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 recognize whether the claim was brought before the appellate court.

         [302 Neb. 156] 15. 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. The determining factor is whether the record is sufficient to adequately review the question.

         16. 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 a 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.

         17. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are 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.

         18. ___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

          Appeal from the District Court for Harlan County: Terri S. Harder, Judge. Affirmed.

          D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          MILLER-LERMAN, J.


         Jeffery S. Smith appeals his convictions and sentences for first degree sexual assault of a child and felony child abuse following a bench trial in the district court for Harlan County. Smith claims that the court violated his constitutional right of confrontation when it allowed the alleged victim to testify outside Smith's presence. Smith also makes claims of ineffective assistance of trial counsel, insufficiency of the [302 Neb. 157] evidence, and excessive sentences. We affirm Smith's convictions and sentences.


         Smith lived in Alma, Nebraska, with his wife, Rochelle Smith, their two children, and Rochelle's two children from a prior relationship. The State originally charged Smith with four counts of first degree sexual assault of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016) and four counts of felony child abuse in violation of Neb. Rev. Stat. § 28-707(1)(a) or (e) and (4) (Reissue 2016). The State amended the information to charge one count of each offense. The alleged victim with respect to each charge was R.F., who is Rochelle's daughter from a prior relationship and who was born in February 2001. Smith was born in January 1978. The offenses were charged as having been committed between August 1 and September 30, 2016, when R.F. was 15 years old. Smith's trial on the charges was held in October 2017, when R.F. was 16 years old.

         In October 2016, police investigated suspected sexual abuse of R.F. by Ronald Lauhead, an adult friend of Smith and Rochelle. The investigation began after Smith reported to police that one of the other children had told him that she had seen Lauhead naked with R.F. The investigation led police to suspect that Smith and Rochelle had also been involved in the abuse of R.F., and eventually Smith, Rochelle, and Lauhead were each charged with offenses related to such abuse.

         Smith waived his right to a jury trial, and the district court scheduled a bench trial for October 24, 2017. The State called Rochelle as its first witness. Rochelle's testimony was as follows.

         At the time of the trial, Rochelle was divorced from Smith. She had married Smith in 2007, and they had been married for over 10 years prior to the divorce. Rochelle has four children-two older children from a prior relationship and two younger children with Smith. R.F. is the oldest of Rochelle's children. In 2013, Rochelle and Smith and the four children [302 Neb. 158] moved into a house in Alma. Soon thereafter, Rochelle introduced Smith to Lauhead, whom she had known from high school. Smith and Lauhead became friends, and Lauhead frequently spent time at Smith and Rochelle's house. One night in March 2016, when the children were asleep in their beds, Smith invited Lauhead to engage in a sexual encounter with Smith and Rochelle. Rochelle testified that she initially objected, but she eventually gave in and the three engaged in sexual activities in Smith and Rochelle's bedroom. The next day, Rochelle told Smith that she was not comfortable with what they had done with Lauhead. However, Smith convinced Rochelle to engage in sexual encounters with Lauhead "[t]wo or three more times" in April.

         The last time that Rochelle recalled engaging in group sexual activity with Smith and Lauhead was at the end of September 2016. Rochelle finished working at 11 p.m., and when she returned home, Smith and Lauhead were watching television in the living room. The children were asleep in their rooms. Eventually, Smith "suggested another threesome" and Rochelle "went along with" the suggestion. The three went to Smith and Rochelle's bedroom and removed their clothing. Smith and Rochelle lay on their bed touching one another, while Lauhead performed oral sex on Rochelle.

         At some point, Smith got out of bed, put on his boxer shorts and left the bedroom. Shortly thereafter, Smith returned to the bedroom with R.F., who was wearing sweatpants and a T-shirt. Smith said that R.F. "was going to join in on the activity." Rochelle told him "no, it wasn't going to happen," but Smith threatened that "if it didn't happen he was going to take all the kids and leave [the] state and [Rochelle would] never see them again." Smith then proceeded to undress R.F. and touch her breasts with his hands as they were standing beside the bed. After Smith had taken all of R.F.'s clothes off, he had her lie down on the bed and then he lay on the bed with R.F. and Rochelle. Lauhead, who had been performing oral sex on Rochelle, moved to the other side of the bed beside [302 Neb. 159] R.F. Lauhead and Smith were both touching R.F.'s breasts and vagina.

         In response to the State's question regarding how Smith was touching R.F.'s vagina, Rochelle testified, "Just putting his hand on it and rubbing it." The State further inquired regarding Smith's touching R.F.'s vagina by asking, "[D]id you see him put his finger inside of her vagina?" Rochelle responded, "No." The State asked, "What did you see him do?" Rochelle responded, "He was just fondling the top of it." When the State asked Rochelle to describe what she meant by "fondling," Rochelle stated, "Rubbing it." The State returned to the topic in its redirect examination of Rochelle. The State asked Rochelle to describe Smith's touching of R.F.'s vagina in "better detail." Rochelle replied that "[h]e was touching the outward part of her vagina." The State asked, "Was that between the skin folds known as the labia?" Rochelle replied, "Yes." Upon further questioning, Rochelle testified that Smith had touched R.F. "between the lips of her vagina" for "[m]aybe three to five seconds" and that she had seen him do so "[j]ust once." The State also asked, "But you did not see him actually insert his finger into her vaginal opening?" Rochelle replied, "No, ma'am."

         Rochelle testified on direct examination that during the encounter among the four, Lauhead had vaginal intercourse with R.F., while Smith had vaginal intercourse with Rochelle. She also testified that Smith did not attempt to stop Lauhead from having intercourse with R.F. After the encounter was finished, the four all got dressed, and Lauhead went home while R.F. returned to her bed. Thereafter, Rochelle never talked to R.F. about what had happened and R.F. did not try to talk to Rochelle about it.

         On cross-examination, Rochelle testified that she had been arrested for child abuse with respect to the abuse of R.F. and that, as a result, her testimony in this case was being given pursuant to a plea agreement related to those charges. According to Rochelle, pursuant to the plea agreement, some charges [302 Neb. 160] against her were being dismissed and the State agreed not to attempt to terminate her parental rights.

         Rochelle testified that in her initial statement to police regarding the abuse of R.F., she had indicated that she had refused to participate in the sexual activity involving Smith. Lauhead, and R.F. She also testified that in the initial statement, she had said that Smith had touched R.F.'s breasts but she had not said that Smith touched R.F.'s vagina. On cross-examination, Rochelle testified that an examination in October 2016 revealed that R.F. was pregnant and that Rochelle subsequently learned that neither Smith nor Lauhead was the father of the baby.

         After Rochelle's testimony was completed, the State called R.F. as a witness. Prior to trial, the State had filed a motion to allow R.F. to testify in camera and outside Smith's presence. The State asserted in the motion that the request was being made pursuant to Neb. Rev. Stat. § 29-1926(1)(d) (Reissue 2016), which generally relates to accommodations for child victims and child witnesses. In this case, the State sought in camera testimony by R.F. because of its concern that R.F. "will be harmed emotionally and psychologically if forced to testify in the presence of . . . Smith." The State further asserted in the motion that R.F., who was 16 years old at the time, "has been diagnosed with Fragile X and ...

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