State v. Howard

921 N.W.2d 869, 26 Neb. Ct. App. 628
Nebraska Court of Appeals·Decided December 4, 2018·No. No. A-17-543.·Published·Cited by 8 cases

Opinion

Riedmann, Judge.

*873I. INTRODUCTION

John J. Howard appeals his convictions and sentences in the district court for Douglas County of first degree sexual assault, *630sexual assault of a child, and first degree sexual assault of a child. We find that the record is insufficient to address several of his ineffective assistance of counsel claims but otherwise find no merit to the arguments raised on appeal. We therefore affirm.

II. BACKGROUND

Howard was charged with first degree sexual assault, count 1; sexual assault of a child, count 2; and first degree sexual assault of a child, count 3. The charges were based on allegations made by two of his daughters, M.H. and S.H., ages 22 and 16 respectively at the time of trial. Both daughters claimed that when they were around the ages of 4 or 5, Howard would digitally penetrate them when giving them baths. S.H. also described incidents, prior to the time she was in third grade, where Howard would force her to perform oral sex on him and would touch her vagina or force her to touch his penis.

During the investigation of the matter, M.H. made a "one-party consent phone call" (phone call) to Howard, which was recorded by police. The recording was received into evidence at trial and played for the jury. During the call, M.H. repeatedly attempted to get Howard to admit that he had intentionally digitally penetrated her while bathing her when she was younger, and Howard's standard response was that he was just bathing her how her mother had shown him.

The matter proceeded to a jury trial. During deliberations, the jury asked to rehear the recorded phone call, but the district court denied the jury's request. The jury ultimately found Howard guilty of the charges. He was sentenced to imprisonment for 30 to 50 years on count 1, 2 to 3 years on count 2, and 45 to 60 years on count 3, with all sentences to run consecutively. Howard now appeals to this court. Additional facts will be provided below as necessary to address Howard's assigned errors.

*631III. ASSIGNMENTS OF ERROR

Howard assigns that the district court erred in (1) permitting the prosecutor to repeatedly misstate evidence during closing arguments, (2) denying the jury's request to rehear the recorded phone call during deliberations, (3) overruling his objection to a police detective's testimony that Howard apologized during the recorded call for digitally penetrating M.H., and (4) denying his motion for mistrial with respect to the victims' mother's testimony and the State's failure to disclose all impeachment evidence. He also claims that he received ineffective assistance of trial counsel in numerous respects.

*874IV. ANALYSIS

1. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS

Howard assigns and argues that the district court erred in denying his motion for mistrial after the prosecutor committed misconduct by repeatedly misstating evidence during closing arguments. At trial, however, Howard did not object to the prosecutor's statements. Shortly after closing arguments began, Howard interrupted and asked if the parties could approach the bench. He asserted that there was a graphic displayed for the jury indicating that during the recorded phone call, Howard admitted to digital penetration, which he alleged was a mischaracterization of the evidence. He therefore objected and moved for mistrial. The motion was denied. The State then completed its closing argument, including making several statements Howard challenges on appeal, with no further objection from Howard.

In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to improper remarks no later than at the conclusion of the argument. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013). Likewise, when a party has knowledge during trial of irregularity or misconduct, the party must timely *632assert his or her right to a mistrial. State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015). A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct. Id.

Because Howard did not object at trial to the statements he now challenges or move for a mistrial on that basis, this issue has not been properly preserved for appeal. Howard relies upon Neb. Rev. Stat. § 25-1141 (Reissue 2016) to argue that his initial objection was sufficient to challenge all of the prosecutor's statements and that he was not required to repeatedly object to every statement he now challenges. We first note that Howard never objected to any statements made during closing arguments; rather, he objected only to the graphic that was displayed for the jury. His objection to the graphic does not encompass the prosecutor's statements as well.

Additionally, § 25-1141 provides that where an objection has once been made to the admission of testimony and overruled by the court, it is unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received. By its plain language, § 25-1141 applies to objections made to the testimony of the same nature by the same witness. Here, Howard's objections were not to the testimony of a witness, but to a demonstrative exhibit and/or statements made by the prosecutor during closing arguments. We therefore find this statute inapplicable in the instant case.

To the extent Howard challenges the denial of his motion for mistrial based on the graphic displayed for the jury, the graphic is not contained in the record before us, and we therefore cannot conclude that the district court abused its discretion in denying the motion for mistrial. See State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014) (whether to grant mistrial is within trial court's discretion, and appellate court will not disturb its ruling unless court abused its discretion).

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State v. Howard, 921 N.W.2d 869, 26 Neb. Ct. App. 628 (Neb. Ct. App. 2018).

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