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State v. Hibler

Supreme Court of Nebraska

March 1, 2019

State of Nebraska, appellee,
David J. Hibler, Jr., appellant.

         1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court independently reviews.

         2. Rules of Evidence: Appeal and Error. An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on relevance, whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the sufficiency of a party's foundation for admitting evidence.

         3. 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.

         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. 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.

         5. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality.

         [302 Neb. 326] 6. Constitutional Law: Statutes: Waiver. The proper procedure for raising a facial constitutional challenge to a criminal statute is to file a motion to quash, and all defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.

         7. Constitutional Law: Statutes: Standing: Proof. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right.

         8. Constitutional Law: Equal Protection. The Nebraska Constitution and the U.S. Constitution have identical requirements for equal protection challenges. The Equal Protection Clause requires the government to treat similarly situated people alike.

         9. Equal Protection. The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.

         10. Legislature: Equal Protection. If a legislative classification involves either a suspect class or a fundamental right, courts will analyze the classification with strict scrutiny.

         11. Equal Protection: Words and Phrases. A suspect class is one that has been saddled with such disabilities or subjected to such a history of purposeful unequal treatment as to command extraordinary protection from the majoritarian political process.

         12. Equal Protection. Age itself is not a suspect classification for equal protection purposes.

         13. _ . When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.

         14. Equal Protection: Proof. Under the rational basis test, whether an equal protection claim challenges a statute or some other government act or decision, the burden is upon the challenging party to eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.

         15. Equal Protection. Under the rational basis test, the Equal Protection Clause is satisfied as long as (1) there is a plausible policy reason for the classification, (2) the legislative facts on which the classification is based may rationally have been considered to be true by the governmental decisionmaker, and (3) the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.

         16. Constitutional Law: Criminal Law: Sentences: Legislature: Courts. The Legislature is clothed with the power of defining crimes and [302 Neb. 327] misdemeanors and fixing their punishment; and its discretion in this respect, exercised within constitutional limits, is not subject to review by the courts.

         17. Constitutional Law: Criminal Law: Sentences. With regard to the mandatory minimum sentence, the guarantees of due process and equal protection, as well as the prohibition against cruel and unusual punishment, do not require individual sentencing in noncapital cases.

         18. Witnesses: Impeachment. As a general rule, a witness makes an inconsistent or contradictory statement if the witness refuses to either deny or affirm that he or she made the prior statement, or if the witness answers that he or she does not remember whether he or she made the prior statement.

         19. Evidence: Hearsay. Prior extrajudicial statements of a witness may be received into evidence for the limited purpose of assisting the jury in ascertaining the credibility of the witness, but unless they are otherwise admissible, they may not be considered as substantive evidence of the facts declared in the statements.

         20. Trial: Witnesses: Impeachment. It is sometimes difficult to determine whether a question attempts impeachment or rises to the level of a charge of recent fabrication, and it is not an abuse of discretion to allow the question where the impeachment is susceptible to either interpretation.

         21. Hearsay: Time. A declarant's consistent out-of-court statements are permitted to rebut a charge of recent fabrication, improper influence, or improper motive when those statements were made before the charge of recent fabrication, improper influence, or improper motive.

         22. Sexual Assault: Proof: Words and Phrases. The slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be proved by either direct or circumstantial evidence.

         23. 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.

         24. 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. 328] 25. Effectiveness of Counsel: Records: Appeal and Error. On direct appeal, allegations of how the defendant was prejudiced by trial counsel's allegedly deficient conduct are unnecessary in an appellate court determination of whether the trial record supports the assigned error.

         26. _: _: _ . 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.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

          MILLER-LERMAN, J.

         I. NATURE OF CASE

         David J. Hibler, Jr., appeals his convictions and sentences in the district court for Lancaster County, following a jury trial, for first degree sexual assault of a child, incest with a person under 18 years of age, and third degree sexual assault of a child. On appeal, Hibler argues that first degree sexual assault of a child under Neb. Rev. Stat. § 28-319.Ol(1)(a) and (2) (Reissue 2016) is unconstitutional, because the statute subjects the defendant to a mandatory minimum sentence based solely on the ages of the victim and perpetrator. We conclude that the age classifications defining sexual assault of a child in § 28-319.Ol(1)(a) and associated mandatory sentence in § 28-319.01(2) are not unconstitutional. We also determine that the district court did not abuse its discretion when it made various evidentiary rulings and that the evidence was sufficient to support Hibler's convictions. We reject several of Hibler's claims of ineffectiveness of trial counsel but do not reach the merits of various other ineffectiveness claims. For the reasons explained below, we affirm.

         [302 Neb. 329] II. STATEMENT OF FACTS

         The State charged Hibler by information with one count of first degree sexual assault of a child, § 28-319.01(2); one count of incest with a person under 18 years of age, Neb. Rev. Stat. § 28-703 (Reissue 2016); and one count of third degree sexual assault of a child, Neb. Rev. Stat. § 28-320.01(3) (Reissue 2016). Before trial, Hibler filed a motion to quash based on his claim that the provisions of § 28-319.01(2) "violate [Hibler's] constitutional rights under the Fifth, Fourteenth and Eighth Amendment[s] to the United States Constitution and the correlative provisions of the Nebraska Constitution." At a hearing on the motion to quash, Hibler's counsel noted the motion was being filed pursuant to State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017), which states that to preserve a constitutional challenge to the mandatory minimum sentence which could be imposed, a motion to quash must be filed. The motion was overruled.

         1. Trial

         (a) Testimony of J.H.

         I.H., the victim, was 13 years old when she testified as the State's first witness. J.H. is the oldest of the three biological children of Hibler and his former wife, A.H. J.H. testified that she was 11 years old during the events alleged in the information. She testified that her parents were still married in 2015, but she thought they were now divorced.

         J.H. testified that Hibler began giving her massages when she was 11 years old, following a Soap Box Derby win in 2015. Hibler would massage her when they would run and bike together. Initially, Hibler touched only J.H.'s back and legs when he massaged her.

         J.H. stated that one night when she was 11 years old, Hibler began to massage her "butt" during a massage in A.H. and Hibler's bedroom. J.H. testified that beginning in October 2015 and continuing through January 2016, Hibler touched her inappropriately more than one time, but less than 10 times. J.H. believed the inappropriate touching occurred about four or [302 Neb. 330] five times. J.H. testified specifically that one incident occurred at her grandfather's home, one incident occurred in J.H.'s bedroom, and the other incidents were in the bedroom Hibler shared with A.H., J.H.'s mother.

         The evidence showed that one of J.H.'s brothers has cancer and that A.H. would take him out of state once a month for treatment. J.H. stated A.H. and her brother were out of town when Hibler massaged her backside. J.H. was lying on her stomach on Hibler's bed, and she was not wearing any clothes, but had a towel over her body.

         J.H. testified that another incident occurred during the morning in J.H.'s room. J.H. had a pain in her chest and Hibler told her to let him give her a massage. He told her to remove her bra so he could massage her chest. J.H. indicated that she stated no but that Hibler stated it "would make it better," so J.H. removed her bra. Hibler then massaged her breasts for possibly 5 or 10 minutes. J.H. was sitting on her bed, and Hibler was sitting next to her.

         J.H. also testified that Hibler touched her genitals multiple times. Sometime in 2015, J.H. and Hibler were spending the night at her grandfather's home in Omaha, Nebraska; J.H. believed A.H. and her brother were not at the home. J.H. stated that she was lying on her side while Hibler was massaging her from behind and that at some point, he put his hand in her underwear "and started touching [her] vagina." J.H. described that it felt like a "swiping motion" and compared it to "when a girl goes to the bathroom and she takes the toilet paper, she wipes. She doesn't like stick it up her vagina, doesn't like just . . . pat it. She swipes it and then puts it in the toilet." J.H. testified that she could feel his fingers "moving up and down [her] vagina" and that it lasted a long time. She testified that she did not tell anyone, because she was scared.

         J.H. testified that Hibler also touched her genitals with the "swiping motion" at the family home in Lincoln, Nebraska. J.H. thought that it occurred about three times and that it happened when A.H. and her brothers were out of town for her brother's treatment. J.H. described the swiping episodes as [302 Neb. 331] follows: she would be half asleep but still aware of her surroundings, then Hibler would put his hand under her underwear and start touching her vagina in a swiping motion.

         J.H. described an incident which occurred with Hibler in his bedroom during which Hibler asked J.H. to wear a pair of A.H.'s purple underwear, which tied on the sides. According to J.H., Hibler was massaging her and then had her put on the underwear that tied and began massaging her legs. At one point, Hibler untied the sides of the underwear and massaged her legs right next to her vagina. Hibler looked at her vagina, though he did not touch her vagina at that time. J.H. testified that when Hibler told her to put the underwear on, he had stated something about them making it "easier."

         J.H. also testified about another incident which occurred in Hibler's bedroom in the early morning. J.H. believed that just she and Hibler were home and that A.H. and her brothers were probably out of state. During this incident, J.H. was asleep when Hibler began to massage her. When Hibler touched her, he performed the swiping motion and also put his hand over her vagina "like as if his hand were a bowl and he were putting it over [her] vagina." J.H. testified that Hibler "touched [her] vagina" and did so "more towards the top of [her] vagina where there is this thing." J.H. stated that during the previous episodes when Hibler was swiping, he would touch the labia, but "this time it was more towards the top of that" area but that she did not know the name of the area. When it was just the swiping motion, J.H. usually could feel just Hibler's fingers, but "this time [she] felt his whole hand." He "touched the top of [her] vagina" with "maybe two or three fingers," and "[h]is fingers were moving." This continued for between 15 to 30 minutes. J.H. stated that her eyes were closed but that she was not asleep. J.H. stated that this was the last incident and that it occurred around December or January. She knew that the incident did not happen in February.

         J.H. testified that, initially, she did not tell anyone about this last incident, because she was scared and did not know what would happen to her and her family. However, after [302 Neb. 332] her friends realized something was wrong, she met them at the school playground and told them in February. J.H. asked her friends not to tell anybody, but the mother of one of her friends learned of the alleged assaults and called the school. The principal asked J.H. to come to the office and asked her some questions. J.H. did not tell A.H. prior to when the police became involved, because she stated, "I wasn't sure if she would believe me or - I actually wanted to wait until we got a new house, because then I thought at the time, I thought it would be easier . . . ." She stated that she "tried to tell [A.H.] There were times, you know, that I would say, let's go for a ride, and I would want to tell her. Then I would chicken out because it is not something that you can walk up to somebody and say this happened."

         (b) Testimony of A.H.

         A.H. testified that Hibler was born in November 1980. A.H. married Hibler in 2002 and had three biological children with him. A.H. testified that there were times she went with her son for his treatments out of state between October 2015 and March 2016. The day visits occurred about once a month and often on Fridays. In addition, A.H. recalled that there were two or three other times when she took her son out of state for treatment and that they spent the night out of state. On those occasions, Hibler stayed home with J.H. and their other son.

         A.H. testified that J.H. "loved to give pedicures" and that she liked to give massages and receive them. A.H. testified it would not have been unusual for Hibler to massage J.H. after running or stretching. A.H. stated that before the police came to her workplace on March 31, 2016, to tell her that J.H. had been interviewed, J.H. had not told her anything regarding Hibler's actions.

         A.H. testified that she spoke with Hibler in person on several occasions about J.H.'s accusations. They also discussed the trouble in their marriage. According to A.H., Hibler wanted A.H. to convey to J.H. that Hibler believed J.H.'s recollection [302 Neb. 333] was a misunderstanding of what had occurred. According to A.H., Hibler initially admitted touching J.H. on just one occasion. A.H. testified that Hibler stated this event occurred when he took J.H. home one night; she was asleep, and he did not want to carry J.H. up the stairs, so he took J.H. to A.H. and Hibler's bed. Hibler told A.H. that "he took some melatonin and rolled over and thought [J.H. was A.H.] and he touched her." Hibler stated that "by the time he realized what he had done, the damage was done," but that it was only one time and wondered if A.H. could forgive him and try to make their marriage work.

         A.H. testified that Hibler wanted A.H. to encourage J.H. to change her story and tell the police that she took melatonin and had some "really bad dreams." If this became J.H.'s story, people would believe her, they could still buy the house they wanted, they could have more children, and they could try to start over. He urged A.H. to tell J.H. that "it was just a little mistake and it didn't have to ruin everything."

         A.H. testified regarding another conversation she had with Hibler on April 26, 2016, when she and Hibler sat in a truck and spoke for a "[c]ouple hours maybe." Hibler initially stated that they could possibly record the conversation, but then changed his mind, so A.H. was only able to record about 7 seconds.

         In this conversation, Hibler repeated to A.H. what he had said the night before to the effect that he was sorry and ashamed, that there was no good excuse for what he had done, and that there was nothing that he could say or do that would excuse what had happened. A.H. testified that at this point, Hibler indicated there had been several episodes which started around October 2014, when A.H. was at the hospital with their son. A.H. testified that Hibler told her the first episode occurred at his father's home, sometime in October 2014. Hibler indicated that when J.H. had complained of pain in her hip flexor, he had rubbed her thighs and her hip, and she then fell asleep. Hibler described that there was a "little gap" between J.H.'s underwear and skin and that he put his fingers [302 Neb. 334] in the gap and felt that "she was wet" and it was "arousing for him." A.H. stated Hibler told her he then pulled his hand back, resumed massaging her thigh and hip but then repeatedly slipped his fingers under her underwear while J.H. slept. A.H. testified that Hibler told her that at one point, he gave J.H. a frontal massage, but that it was really innocent, and that J.H. was having panic attacks or shortness of breath and would get a really sharp pain on her side, in response to which Hibler offered to rub her ribs. Hibler told her that J.H. had taken off her shirt, but the pain was in the area covered by her sports bra, so Hibler told her to take the sports bra off, and he just rubbed her muscles there, but that it was not sexual.

         In connection with another incident, Hibler told A.H. that he and J.H. were home and J.H. asked to sleep in Hibler and A.H.'s bed, which was not uncommon. J.H. indicated she was scared and crying, so she slept in their room. A.H. testified that Hibler stated that either he or J.H. asked for a hug, and Hibler rolled J.H. on top of him and gave her a hug. Hibler became aroused, so he put J.H. back on the bed. A.H. testified that Hibler stated, "He thought something was wrong with him and he did not know what to do about it." A.H. stated Hibler told her he tried watching pornography, including "fake daddy-daughter porn," to cure the problem, but that did not help and in fact made things worse. Hibler stated that J.H. would sometimes ...

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