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State v. Dady

Supreme Court of Nebraska

December 13, 2019

State of Nebraska, appellee,
Joshua Dady, appellant.

         1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

         2. Jury Instructions: Appeal and Error. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.

         3. Verdicts: Appeal and Error. Harmless error review 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 surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

         4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

         5. Criminal Law: Evidence: Appeal and Error. When examining 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.

         6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination whether the [304 Neb. 650] court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.

         7. Judgments: Appeal and Error. 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.

         8. Sexual Assault. Under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016), whether the victim was incapable of consent depends upon a specific inquiry into the victim's capacity, i.e., whether the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct.

         9. ___. Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) applies to a wide array of situations that affect a victim's capacity, including age.

         10. Jury Instructions: Evidence: Appeal and Error. When examining for harmless error, the court may look at a variety of factors including the jury instructions as a whole, the evidence presented at trial, and the closing arguments.

         11. 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 the witnesses, or reweigh the evidence; such matters are for the finder of fact.

         12. Rules of Evidence: Hearsay: Proof. Evidence is admissible under Neb. Rev. Stat. § 27-803(3) (Reissue 2016) when the party seeking to introduce the evidence demonstrates (1) that the circumstances under which the statements were made were such that the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) that the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.

         13. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

         14. Sentences. When imposing a sentence, a sentencing judge should 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 violence involved in the commission of the crime. 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.

          [304 Neb. 651] Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, Timothy F. Shanahan, and Abbi R. Romshek 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.

          FREUDENBERG, J.


         Appellant was convicted of first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016). Appellant was 18 years old at the time, and the victim was 10 years old. Appellant was found guilty, and he now assigns several errors on appeal. These errors focus on several rulings by the district court related to the knowledge element of the crime charged and whether age can be a factor in a jury's determination of capacity under § 28-319(1)(b). For the reasons set forth below, we affirm the judgment of the district court.


         Joshua Dady was charged with first degree sexual assault after he admitted to police that he had sex with M.J., a 10-year-old girl. While Dady was 18 years old and within 4 days of their meeting, Dady engaged in vaginal intercourse with M.J. Dady was charged under § 28-319(1)(b). Section 28-319(1) makes it a crime for "[a]ny person [to subject] another person to sexual penetration . . . (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct[.]" Following a jury trial, Dady was convicted and sentenced to 20 to 25 years' imprisonment. Dady appeals.

         Dady first met and talked with M.J. for approximately an hour after she exited a schoolbus a few blocks from her home [304 Neb. 652] on a Thursday or Friday afternoon. M.J. testified that Dady told her he was 16 years old and that she told Dady she was 10 years old.

         M.J.'s stepfather saw M.J. and Dady talking and introduced himself and then walked M.J. into the house. When M.J.'s stepfather noticed Dady following everyone into the home, he told Dady to leave. M.J.'s stepfather also asked Dady if he knew how old M.J. was, and Dady said no. He then told Dady that M.J. was 10 years old. M.J. later encountered Dady while she was walking her dog. M.J. testified that they discussed "YouTubers" for an unknown length of time. M.J. testified she thought that she and Dady "hung out" again later in the day on a Saturday. M.J.'s mother testified that M.J. came to her on that Saturday and asked to go to a mall with Dady. M.J.'s mother told M.J. she could not go to the mall with Dady because she did not know him.

         On the morning of Sunday, August 20, 2017, M.J. met up with Dady for about an hour, then went home for lunch and to clean her room. After lunch, M.J. returned to Dady's house and sat on the curb. After approximately 5 minutes, Dady invited M.J. to sit by a fence in the yard. Dady asked M.J. if she had a boyfriend and then suggested to M.J. that they should have sex. M.J. testified that she had originally said no, but then agreed after Dady offered to give her an "MP3 player." M.J. and Dady began kissing. Dady then pulled down his shorts and put a condom on. M.J. testified that she knew what a condom was but had not seen one before and did not know what Dady meant when he said, "'We can't let this go to waste now.'" Dady then pulled down M.J.'s pants and pulled M.J. on top of him. M.J. testified that Dady's pulling her on top of him was not forced. M.J.'s statements to medical personnel and her testimony at trial were that she knew what sex was and that she willingly engaged in sex with Dady.

         Neighbors saw M.J. pull down her pants and attempt to sit on Dady's lap. They ran outside and confronted M.J. and Dady. M.J. and Dady both stood up and pulled their pants up as the neighbors approached. M.J. testified that she asked Dady to [304 Neb. 653] "'[p]romise not to tell'" what happened. The neighbors told M.J.'s stepfather and then informed Dady's foster father of what they had seen. The neighbors testified they had seen Dady and M.J. "hanging out" earlier in the day when M.J. was riding around the neighborhood on a "bike [with] flowers on it."

         M.J.'s stepfather called M.J. home. When M.J. arrived home, she went to her room and would not speak with either her stepfather or her mother. M.J.'s mother then called the 911 emergency dispatch service. M.J. was taken to a child advocacy center and then to a hospital to be examined by a sexual assault nurse.

         Police, responding to the 911 call, interviewed M.J.'s mother and then went to Dady's foster home. Dady and his foster father came outside and spoke with the police. Dady admitted to police that he had sexually penetrated M.J.'s vagina and that he was 18 years old. The police placed Dady under arrest, and he was taken to a police station for an interview. Police obtained consent from Dady's foster father to search the yard and the home. Police found a condom wrapper in the yard and a used condom in a trash can in Dady's bedroom.

         During the interview with police, Dady claimed M.J. told him that she was 16 or 17 years old and that she was going to be a freshman in high school. Dady initially denied that his penis penetrated M.J.'s vagina, but later stated that a small portion of his penis went inside M.J.'s vagina. Dady also told police that he put his finger in M.J.'s vagina, but that she told him to stop because it was hurting her. Dady also told police that he put his penis in M.J.'s mouth for a "millisecond."

         Dady said M.J. told him on the day of the incident that her mother says she is 10 years old, but that she is a freshman in high school and was about to turn 16 years old. At the end of the interview, when asked how old he thought M.J. looked, Dady admitted she looked 10 or 11 years old.

         Susan Kelly, an emergency room pediatrician, testified concerning M.J.'s visit to the emergency room on the night of the incident. Kelly testified that M.J. or M.J.'s mother relayed that M.J. had been diagnosed with attention deficit hyperactivity [304 Neb. 654] disorder (ADHD), oppositional defiant disorder (ODD), and disruptive mood dysregulation disorder (DMDD). This was done while Kelly was ascertaining M.J.'s medical history for the purpose of treating her in the emergency room. Dady objected on the ground of hearsay and was overruled.

         Kelly explained the various stages of cognitive development of children and testified that a normal 10-year-old's brain has not fully developed the ability to assess risk and control impulses. Kelly further testified as to how diagnoses of ADHD and ODD can affect a person's ability to control impulses. On cross-examination, Kelly testified that her impressions of M.J.'s ability to understand the nature of sex were based upon her time spent with M.J., M.J.'s past diagnoses, and the general categorization of a 10-year-old's capacity. When asked to give further support for her conclusion that M.J. was not capable of appraising the nature of sex, Kelly testified that M.J. did not know when her last period occurred. Further, Kelly testified that when she asked M.J. if a condom was used in the incident, M.J. responded, "'I think so.'"

         Additional evidence of M.J.'s mental health diagnoses was presented through the testimony of the forensic interviewer who saw M.J. at the child advocacy center. She testified that ADHD, ODD, and DMDD can affect emotional stability and impulse control. She indicated the severity of each of these conditions can vary based on the individual. She admitted that she is not licensed to diagnose these conditions; however, she stated that it is important for an interviewer to know a child's mental health diagnoses in order to tailor the interview to the child. She testified that M.J. appeared to be a developmentally normal 10-year-old and indicated that no formal testing of cognitive ability was done.

         M.J.'s mother testified that M.J. has had behavioral and mental health issues since she was approximately 4 years old. M.J.'s mother testified that M.J. had been diagnosed with ADHD, ODD, and DMDD. Dady objected on grounds of foundation and hearsay and was overruled. On cross-examination, [304 Neb. 655] Dady elicited testimony from M.J.'s mother that the diagnoses had come from M.J.'s doctor. Dady made a motion to strike M.J.'s mother's testimony on hearsay and Confrontation Clause grounds. M.J.'s mother also testified that M.J.'s mental health problems have resulted in M.J.'s hospitalization more than 10 times. M.J.'s mother testified these hospitalizations normally occur after M.J. becomes physically and emotionally escalated or when M.J. threatens to harm herself.

         M.J.'s mother testified that she had age-appropriate conversations about sex with M.J. M.J.'s mother expressed that prior to the incident, M.J. understood the physical aspects of what sex is. M.J.'s mother explained that some of the conversations were prompted by M.J.'s being accused of inappropriate sexual touching of her half sister. The incidents with her half sister resulted in M.J.'s being hospitalized and then receiving treatment at a residential treatment facility for approximately 5 months.

         At the close of the State's case, Dady made a motion to dismiss. Dady claimed the State failed to prove that M.J. lacked capacity and that Dady knew or had reason to know M.J. lacked capacity under the statute. The court denied the motion.

         At the conclusion of evidence, Dady objected to jury instruction No. 6 proposed by the court. Dady submitted an alternate instruction based on the definition of mental impairment taken from In re Interest of KM.[1] Instruction No. 6 provided in part: "'Mentally Incapable' means that because of the victim's age or mental impairment, the victim was incapable of resisting or appraising the nature of her sexual conduct. 'Mental Impairment' means the victim's impairment was so severe that she lacked the capacity to consent to sexual conduct with the Defendant."

         Dady's proposed jury instruction stated in relevant part:

"Mentally or physically incapable of resisting or appraising the nature of her conduct" shall mean a significant abnormality on the part of the victim such as [304 Neb. 656] severe intoxication or other substantial mental or physical impairment. In order for a mental impairment to be substantial, it must be severe; a person in this category is treated as equivalent to a severely intoxicated or an unconscious person. Not every mental challenge or impairment is so severe that the person lacks the capacity to resist or appraise the nature of her conduct.

         The court gave its proposed instruction No. 6. Other instructions, given without objection, provided that the jury must apply the law in the instructions and that no one instruction contains all of the law applicable to this case. A further instruction provided the specific elements of the charge using the language of §28-3 l9(1)(b).

         After the jury returned a guilty verdict, Dady made a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Dady provided several arguments in support of the motion, only two of which were assigned on appeal. First, Dady argued that the jury instructions were incorrect and prejudicial. Second, Dady argued that there were irregularities in the proceedings of the court, the prosecuting attorney, and the witnesses for the State prejudicial to his rights. The alleged trial irregularities related to the court's change in its ruling on whether Dady could present evidence under Neb. Rev. Stat. § 27-412 (Reissue 2016) of three sexual encounters M.J. had with other people.

         Dady had provided notice before trial that he intended to use evidence under § 27-412 to demonstrate M.J.'s prior knowledge and sexual activities. Specifically, Dady wanted to question M.J. concerning certain episodes of sexual conduct between M.J. and her half sister, between M.J. and her cousin, and between M.J. and her brother. The encounters with the half sister occurred before the events with Dady, the encounter with her cousin occurred after the incident with Dady, and the timing of the encounter with her brother was unknown. The State filed a motion in limine to exclude evidence of the encounters, asserting that the encounters were not relevant.

         [304 Neb. 657] The court initially determined that Dady would not be allowed to question M.J. concerning the three encounters. However, the court did allow Dady to question M.J.'s mother about one hospitalization and whether it occurred because of an incident between M.J. and her half sister.

         As the trial progressed and the court learned more about the nature of the case, the court reconsidered its initial ruling on the motion in limine. Before cross-examination of M.J. began, the court reversed its prior decision and indicated to both parties that it was going to allow some questioning about M.J.'s previous sexual encounters because such evidence could demonstrate M.J.'s ability to appraise the nature of her conduct. After the cross-examination of M.J. began, the court took a recess, dismissed the jury, and reversed its decision again, back to its original position. The court specified that it would allow questioning which could tend to prove M.J. knew what vaginal intercourse is or what sexual arousal is, but would not allow the further ...

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