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.
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
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.
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.
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.
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
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
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.
Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) applies to
a wide array of situations that affect a victim's
capacity, including age.
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.
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
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.
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.
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.
Neb. 651] Appeal from the District Court for Douglas County:
Gregory M. Schatz, Judge. Affirmed.
C. Riley, Douglas County Public Defender, Timothy F.
Shanahan, and Abbi R. Romshek for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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
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
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.
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.
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.
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."
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
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
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."
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.
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.
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
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
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.
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.
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.
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. 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
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.
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).
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.
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.
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.
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 ...