State v. Andersen

436 N.W.2d 537, 231 Neb. 458, 1989 Neb. LEXIS 102
CourtNebraska Supreme Court
DecidedMarch 10, 1989
DocketNo. 88-087
StatusPublished
Cited by1 cases

This text of 436 N.W.2d 537 (State v. Andersen) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Andersen, 436 N.W.2d 537, 231 Neb. 458, 1989 Neb. LEXIS 102 (Neb. 1989).

Opinion

Per Curiam.

The defendant, Leslie R. Andersen, was convicted of sexual assault on his 12-year-old stepdaughter and two counts of third degree assault on his wife. He was sentenced to imprisonment for 2 years for the sexual assault and to 6 months on each of the assault charges, the latter sentences to run concurrently with each other but consecutively to the sexual assault sentence. He [459]*459has appealed and contends that the evidence was not sufficient to sustain the sexual assault conviction and that the trial court erred in failing to sustain the objections to Certain testimony concerning the sexual assault.

Since the errors assigned and discussed by the appellant concern only count I, the sexual assault count, the evidence concerning counts III and IV, the third degree assault counts, will not be discussed.

The record shows that the sexual assault occurred sometime in April 1987. The victim testified that while she was in her bed, she awoke to find the defendant had his hands on her “private area” and was rubbing up and down. The defendant had raised her nightgown and was rubbing her privates up and down on the outside of her underwear. The defendant then pulled down her underwear and rubbed her vaginal area and, while doing so, penetrated her vagina. Then, the defendant pulled her panties back up and kissed her on her vaginal area, through the panties. The victim did not let the defendant know she was awake, because she was scared, but rolled over so the defendant would stop. During the incident the defendant was “breathing funny.” After the defendant had left, the victim got into bed with her sister and told her what happened.

The next morning, the victim told her brother about the incident. At the trial the brother testified that the victim had told him about the incident the morning after it occurred. The victim also told her sister and mother about the incident. She told her mother that the defendant had touched her in her private area, and pointed out where she had been touched. According to the victim, she, her mother, and the defendant had a conversation in which the defendant admitted that the incident had happened.

The mother testified that in April of 1987, the victim told her that the night before the defendant had come into her room and touched her private area. The mother went on to testify that the victim said that the assault had not occurred but that the victim wanted her and the defendant to stop fighting. She further testified that she did not remember telling a juvenile court employee assigned to the case that the defendant had admitted to the assault, and testified that the employee’s testimony that [460]*460she, the mother, had said that the defendant had gone into the victim’s bedroom and touched the victim’s stomach was not the truth.

On June 10, 1987, the victim’s mother called the police because she and the defendant were fighting. Officer Catherine Glesmann was one of the police officers who responded to the call. The victim told Officer Glesmann about the sexual assault but did not relate specific details of the assault. She merely indicated to Glesmann the area of her body which the defendant had touched.

With regard to the delay in reporting the incident, the victim testified that her mother had said that the mother would be “thrown in jail” along with the defendant for not reporting the assault immediately.

After the June 10 assault on Mrs. Andersen, all three children were taken to the police station for questioning. Officer Geraldine McWhirt testified that when she interviewed the victim, she was told the details of the assault. When Robin Gabriel, a sexual assault investigator with the Sarpy County sheriff’s office, interviewed the victim on June 11 or 12, the victim told Gabriel the details of the assault but said that it had occurred in June.

Officer Timothy C. Estes testified that he interviewed the victim on the 10th of June and that the victim said she had been assaulted, but was having difficulty talking to him because he was a man. Estes interviewed the victim about a week later, at the request of Mrs. Andersen, who had called Estes to tell him that she thought the children were not telling the whole truth about the sexual assault. Estes then testified that the brother had told him that Mrs. Andersen asked the children to lie about the sexual assault and tell the police that the defendant had touched the victim above the panty line, in an effort to wake the child. Later, the victim told Officer Estes that the sexual assault had not occurred in June when the police were called, but had happened 2 or 3 months earlier. The victim testified that her mother kept telling her that she was lying and to tell the police to drop the charges, that they wanted the defendant home.

A physician, Susan Sucha, examined the victim on June 11, 1987, and testified that the victim said that while she was [461]*461sleeping, she awakened to find that her stepfather had his hand down her panties, touching her. Sucha testified that she did not find any signs of injury to the victim but that she would not have expected to find signs of injury with the kind of allegation the child was making — that she was touched or fondled.

The evidence which has been summarized was sufficient, if believed, to sustain a finding of guilty beyond a reasonable doubt on the sexual assault charge.

“In determining the sufficiency of evidence to sustain a criminal conviction, this court does not resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, and a verdict rendered thereon must be sustained if, taking the view of such evidence most favorable to the State, there is sufficient evidence to support it.”

State v. Hurlburt, 218 Neb. 121, 123, 352 N.W.2d 602, 603 (1984); State v. Schenck, 222 Neb. 523, 384 N.W.2d 642 (1986).

“In a sexual assault case, the victim need not be independently corroborated on the particular acts constituting sexual assault, but must be corroborated on the material facts and circumstances tending to support the victim’s testimony about the principal fact in issue.” .. . State v. Wounded Arrow, 207 Neb. 544, 300 N.W.2d 19 (1980). After the victim has testified to the commission of the offense, it is competent to prove in corroboration of that testimony as to the main fact that, within a reasonable time after the alleged assault, the victim made complaint to a person to whom a statement of such an occurrence would naturally be made, especially if the victim is afraid and ashamed of what has happened.

State v. Schon, 227 Neb. 482, 484, 418 N.W.2d 242, 244 (1988). See, State v. Stone, 228 Neb. 389, 422 N.W.2d 568 (1988); State v. Polyascko, 224 Neb. 272, 397 N.W.2d 633 (1986). Under the circumstances in this case, the complaints made by the victim were made within a reasonable time after the assault.

An important issue in the case was the credibility of the victim.

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Related

State v. Butts
439 N.W.2d 493 (Nebraska Supreme Court, 1989)

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Bluebook (online)
436 N.W.2d 537, 231 Neb. 458, 1989 Neb. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-andersen-neb-1989.