State v. Daniels

388 N.W.2d 446, 222 Neb. 850, 1986 Neb. LEXIS 980
CourtNebraska Supreme Court
DecidedMay 30, 1986
Docket85-463, 85-464, 85-465 and 85-466
StatusPublished
Cited by18 cases

This text of 388 N.W.2d 446 (State v. Daniels) 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. Daniels, 388 N.W.2d 446, 222 Neb. 850, 1986 Neb. LEXIS 980 (Neb. 1986).

Opinions

Hastings, J.

George R. Daniels appealed his conviction by jury on two counts of first degree sexual assault and two counts of first degree false imprisonment. Daniels was originally charged with [851]*851two counts of first degree sexual assault and two counts of kidnaping. At trial appellant’s motions for directed verdicts after each of the State’s and the appellant’s cases were overruled.

In reaching its verdict the jury found that the appellant was not guilty of kidnaping but was guilty of two counts of first degree false imprisonment as a lesser-included offense. Appellant’s motions for new trial on each of the unconsolidated cases were overruled. Daniels was sentenced to 10 to 20 years’ imprisonment for each of the sexual assault convictions and 1 to 3 years for each of the false imprisonment convictions, all sentences to run consecutively.

The incident from which these convictions arose took place in a house rented by the Wilke family in South Sioux City. The family consists of a husband and wife and five children. Daniels paid the Wilkes $116-per-month rent for living space in their home. He slept in the basement but had free access to the entire house. The Wilkes also had access to the basement, where they did laundry and stored goods, though Mr. Wilke instructed the children to respect the appellant’s privacy.

On July 6, 1984, while the Wilkes were on vacation, two neighborhood girls, ages 9 and 12, came to the door, asking for Kathleen Wilke’s daughters. The appellant invited them to watch T.V., locked the doors, threatened them with a machete, and sexually assaulted them. Daniels also threatened the girls with physical harm if they reported the incident to anyone.

The day after the assault, one of the victims, Allison, met her friend Johnna Eidenschink at the park and sketchily related the incident. Johnna told her mother, Kathleen Wilke, about the conversation, and Duane Wilke ordered the appellant to leave the house permanently on September 9. Daniels left the Wilke house, taking nothing but his cigarettes with him. On September 21 the Wilkes consented to a search of the basement, which yielded the machete Daniels used in assaulting the girls.

The appellant assigns as errors that the trial court erred (1) in overruling the motion to suppress the machete, finding that the Wilkes had authority to consent to a search of the basement, (2) in overruling hearsay objections to the testimony of Allison and Johnna regarding their conversation about the assault, and (3) [852]*852in overruling appellant’s motions for directed verdicts on the kidnaping charges.

Regarding the first assignment of error, the motion to suppress the machete was properly overruled. We have stated that a warrantless search of a house may be justified when the police have obtained the consent to search from a party who possessed common authority over, or other sufficient relationship to, the premises sought to be inspected. State v. Van Ackeren, 200 Neb. 812, 265 N.W.2d 675 (1978). The Wilkes had sufficient authority over the basement to consent voluntarily to its search.

The parties devote a substantial portion of their briefs to arguments concerning whether the appellant had been evicted and whether the appellant’s possessions had been abandoned. We need not reach those questions. Even if Daniels had not vacated the house, the Wilkes, as cohabitants of the house, had authority to consent to a search of the basement. The basement was not designated for exclusive use of the appellant, and, in fact, it was not used exclusively by the appellant. See, also, State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981); State v. Schrader, 196 Neb. 632, 244 N.W.2d 498 (1976); United States v. Finch, 557 F.2d 1234 (8th Cir. 1977).

The appellant’s second assignment of error concerns the admission of testimony of one of the victims, Allison, and her friend Johnna Eidenschink, Kathleen Wilke’s daughter. Allison testified that she had a conversation with Johnna in the park on the day after the assault took place. The court overruled the defendant’s hearsay objection. “Q. What did you tell Johnna? A. I told her that — I told her what happened. I didn’t tell her all the things he made us do. I just told her what he did to us.”

Johnna, age 12, testified that about “half a week” after her return to South Sioux City, she talked with Allison in a park. Again over objection, the witness testified:

Q. Em going to ask you the question again. Then you tell me either yes or no. When you were talking to Allison after you had gotten back from vacation, did she say anything to you that concerned you? Answer that yes or no.
A. Well, yes.
[853]*853Q. What was it that she told you that concerned you?
A. She said that George Daniels was chasing them around with a knife.
Q. Did she say if it involved anyone else besides herself or not?
A. She said her and Kelly ....
Q. Did she say anything else that you can remember?
A. No.

In support of the admission of this testimony, the State relies on an evidentiary rule developed in Nebraska case law.

“The rule is well established in this state that in a prosecution for sexual assault, the prosecutrix may testify in chief on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details; and that others may likewise testify in chief to such fact and nature of the complaint, but not as to its details____"

(Emphasis in original.) State v. Evans, 212 Neb. 476, 481, 323 N.W.2d 106, 109 (1982); State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981); State v. Chaney, 184 Neb. 734, 171 N.W.2d 787 (1969); Perry v. State, 163 Neb. 628, 80 N.W.2d 699 (1957); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).

This court has also stated that one to whom the complaining witness has complained may testify to the fact and nature of the complaint if the complaint was made voluntarily and without unreasonable or inconsistent delay. State v. Watkins, supra; State v. Deardurff, 186 Neb. 92, 180 N.W.2d 890 (1970); Texter v. State, 170 Neb. 426, 102 N.W.2d 655 (1960).

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State v. Daniels
388 N.W.2d 446 (Nebraska Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
388 N.W.2d 446, 222 Neb. 850, 1986 Neb. LEXIS 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daniels-neb-1986.