State v. Morris

541 N.W.2d 423, 4 Neb. Ct. App. 250, 1995 Neb. App. LEXIS 410
Nebraska Court of Appeals·Decided December 26, 1995·No. No. A-94-1197·Published·Cited by 2 cases

Opinion

Hannon, Judge.

The defendant, Louise Morris, appeals her convictions resulting from a jury trial for one count of first degree sexual assault on a child and two counts of sexual assault of a child. On appeal, Morris claims that the district court erred (1) in admitting four State’s witnesses’ testimony relating what the victims had told each of them as prior consistent statements pursuant to Neb. Evid. R. 801(4)(a)(ii), Neb. Rev. Stat. § 27 — 801(4)(a)(ii) (Reissue 1989), and (2) in imposing excessive sentences. Morris relies upon a recent U.S. Supreme Court decision interpreting a comparable federal rule of evidence to require a showing, before the prior consistent statement is admissible, that the statement had been made before the charged [252] undue influence or recent fabrication occurred. We conclude that the Nebraska Supreme Court has interpreted rule 801(4)(a)(ii) to not require such a showing and that the ruling of the U.S. Supreme Court is an interpretation of a federal rule of evidence and not a pronouncement of federal constitutional law. We find that the trial court did not err in admitting the prior consistent statements, nor did the court abuse its discretion in sentencing Morris. We therefore affirm.

BACKGROUND AND FACTS

In November 1993, Morris was charged with one count of first degree sexual assault on a child and one count of sexual assault of a child for assaults on her daughter, Nicole T., and one count of sexual assault of a child for assaults on her son, Jason T. These assaults allegedly occurred from January 1983 to December 1988, when Nicole was between 4 and 10 years of age and when Jason was between the ages of 1 and 7.

Morris and Gene T. married in June 1978. Their daughter, Nicole, was bom on October 30, 1978, and their son, Jason, was born on October 7, 1981. They lived in a mobile home south of Seward, Nebraska, and later moved to a house in Seward. Morris left the family home in March 1989 and moved to Grand Island, Nebraska. Within a month and a half she started living with a man she had been seeing before her separation. They later married. The children remained in Gene’s home, and he was awarded their custody in the final divorce decree, entered in January 1990. Prior to the decree, a guardian ad litem for the children was appointed in the divorce proceeding, and during Morris’ criminal trial, the guardian testified that neither child gave any indication that they were sexually abused when he interviewed them back in 1989. Gene testified that until October 1992, he had no indication that his children were sexually abused.

Gene started living with Jenny B. in February 1990, and they married the following November. Morris had visitation with the children, but she testified that Gene and Jenny made it difficult and then impossible to visit the children. Morris and her husband later moved to Arizona, and she claims that after a few unsuccessful attempts to contact the children by letter or phone she stopped trying. Gene’s testimony tended to support Morris’ [253] assertion that he and Jenny made it difficult, if not impossible, for Morris to visit and correspond with the children. Jenny admitted she did not get along with Morris.

Gene testified that Jason did not have nightmares or frequently wet his bed prior to Morris’ leaving the house. However, after Jenny moved in, Gene and Jenny started having problems with Jason. Jenny testified that Jason became violent, got upset, used profanity, had nightmares, and frequently wet the bed. On one occasion while Jenny was babysitting some other children, Jason produced a knife and talked as if he intended to hurt them. At about the same time, Gene and Jenny grew concerned with Nicole’s loss of weight and found treatment for her at “Pioneer.” Gene and Jenny took Jason to Pioneer for treatment. After a couple of sessions at Pioneer, Jason was taken to Lincoln General Hospital in July 1992, where he stayed for approximately 3 months. It was determined that he required long-term treatment, and Gene and Jenny admitted him to Epworth Village, a residential treatment center for children.

In October 1992, Gene and Jenny visited Jason at Epworth Village, and when he got into their car, he told them that he had started counseling with Sandra Kroeker and that she thought he was sexually abused by his mother. He told them that his sister, Nicole, knew about it. When they attempted to talk with Nicole regarding the matter, she ran upstairs and began beating her head on the floor. Jenny testified that both children admitted being sexually abused by Morris but neither was asked by Gene and Jenny to relate any details of the abuse to them.

Jason was 12 years old when he testified. His testimony was elicited by the prosecution through a series of leading questions to which, for the most part, Jason’s answers were one or two words long. Jason testified that he considers his “private parts” to be his penis and that his mother touched his private parts. He could not remember the details of the first time this happened, other than to say his pants were off, and he was in his parents’ bedroom in the mobile home. Jason was about 3 at the time. He testified that when he was about 5 or 6, the family moved to a different house and that his mother again touched his private parts. He stated that sometimes he would have his clothes on [254] and that sometimes he would be naked, and sometimes his sister would be present. He did not remember many details when he was questioned. He testified that his mother touched him on more than one occasion, that he touched her, and that he and his sister touched each other at their mother’s direction. His mother told him never to tell anyone about these incidents. He testified that he was very angry at his mother for leaving and that he wanted her back.

Nicole was a sophomore in high school when she testified. She lived in the mobile home until she was 6 or 7 and then moved with her family into the house. She was in the fourth grade when her parents were divorced. She testified that her understanding of “private parts” is her breasts and vagina. When she lived in the mobile home, her mother touched her private parts a couple of times a week, sometimes while she was clothed, and other times while she was not. After they moved, her mother continued to touch her, but not as often, because Nicole was in school. She testified that most of the time, her mother would take her clothes off as well and that they would lie on the bed and touch each other’s private parts. She testified that her mother used her fingers to vaginally penetrate her more than once. She also testified that she and Jason touched one another, because their mother told them to do so. She also witnessed her mother touching Jason. She also testified that her mother brought her to as many as five men’s houses, that they touched her, and that her mother knew that this was occurring. She could not describe the events with these men in any detail, except to say that the men were older.

The timeframe for these events was from the time Nicole was 4 or 5 until her mother left, when Nicole was 10. She did not tell anyone before Jason had told because her mother told her not to tell. She denied the assertion that the investigating officer convinced her that her mother was touching them at such an early age and that the investigating officer suggested to her that the men abused her.

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State v. Morris, 541 N.W.2d 423, 4 Neb. Ct. App. 250, 1995 Neb. App. LEXIS 410 (Neb. Ct. App. 1995).

541 N.W.2d 423 (State v. Morris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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