State v. Plant

461 N.W.2d 253, 236 Neb. 317, 1990 Neb. LEXIS 302
CourtNebraska Supreme Court
DecidedOctober 5, 1990
Docket89-094
StatusPublished
Cited by57 cases

This text of 461 N.W.2d 253 (State v. Plant) 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. Plant, 461 N.W.2d 253, 236 Neb. 317, 1990 Neb. LEXIS 302 (Neb. 1990).

Opinions

Fahrnbruch, J.

The defendant, Thomas M. Plant, appeals his Douglas County jury convictions for the second degree murder of his [320]*32018-month-old stepson and for the first degree assault and child abuse of his 4-year-old stepson. We affirm.

Plant received a life sentence for the second degree murder of 18-month-old Christopher Bartlett, his stepson; not less than 6V3 nor more than 20 years for first degree assault; and not less than 1 nor more than 3 years for child abuse. The assault and abuse sentences were concurrent with each other and consecutive to the murder sentence.

In his appeal, the defendant claims, in substance, that the trial court erred (1) in failing to suppress evidence obtained as a result of a warrantless entry into his home; (2) in receiving allegedly inadmissible hearsay evidence, i.e., out-of-court statements of Plant’s 4-year-old stepson and of the defendant’s own 4-year-old daughter relating to the death of the one stepson and the infliction of injuries to the second stepson; and (3) in failing to find that the admission of his daughter’s and stepson’s hearsay statements denied the defendant his constitutional right of confrontation.

In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them. State v. Bohan, 233 Neb. 679, 447 N.W.2d 485 (1989); State v. Wokoma, 233 Neb. 351, 445 N.W.2d 608 (1989); State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).

Taking the view most favorable to the State, the record reflects the following operational facts. Around 7 p.m. on May 20, 1988, Sgt. William Muldoon of the Omaha Police Division was directed to Childrens Memorial Hospital in Omaha to await the arrival by rescue squad of Christopher Bartlett, a critically injured 18-month-old child, and to conduct an investigation into the child’s injuries.

Upon arriving at Childrens Memorial Hospital, Muldoon was informed that the child’s stepfather, the defendant Thomas Plant, had originally taken the child by automobile to Bergan Mercy Hospital and the child was then transferred to Childrens Memorial Hospital. Between 7 and 8 p.m. on May 20, Dr. Gary [321]*321S. Lerner examined Christopher Bartlett at Childrens Memorial Hospital. At that time, there was considerable swelling on the child’s forehead, accompanied by some bruising. There was a massive amount of swelling inside Christopher’s head which had occurred within 5 or 6 hours of the examination. In addition to the head injury, Dr. Lerner testified, Christopher had a number of bruises; an abrasion on his chin; a number of rib fractures; a small corner fracture of the distal femur, the largest bone in the leg; and a shattered pubic bone.

Muldoon was told by physicians at the hospital that Christopher had suffered a severe brain hemorrhage and was not expected to live. The doctors said that Christopher’s injuries were inconsistent with the explanation given by his parents. Christopher’s mother, Gloria Plant, was present at the hospital and informed Muldoon that Christopher had fallen off a sofa while reaching for potato chips and struck his head when he fell to the floor. It was later determined that the floor in question was carpeted.

A cruiser officer told Sergeant Muldoon that he had made contact with Thomas Plant at Bergan Mercy Hospital. Plant informed the officer that he was going to his home to check on the well-being of three other children who were at the Plants’ residence, that he had to arrange for a babysitter for the children, and that he would then go to Childrens Memorial Hospital. The three children were 4-year-old Cindy Plant, 4-year-old James Bartlett, and 2-week-old April Plant. Thomas Plant’s mother and sister, who were at the hospital, told Muldoon that the children were at the Plants’ residence. Gloria Plant stated that the children were either at home or with Thomas Plant.

The defendant called Childrens Memorial Hospital and spoke with Sergeant Muldoon at approximately 7:30 p.m. The defendant informed Muldoon that he was on his way to the hospital and that he had taken the children to a babysitter in Carter Lake, Iowa. Plant’s wife, mother, and sister told Muldoon that they were unaware of any babysitter in Carter Lake. Muldoon was also advised that the Plants’ home did not have a telephone.

[322]*322At about the same time as Muldoon spoke with Plant, Sgt. William Connelly of the Omaha Police Division and two other police officers were dispatched to the Plants’ residence to locate the three children. The officers knocked on the front and back doors of the Plants’ home and announced their presence, but received no response. Connelly testified at a suppression hearing that no one appeared to be home, the lights were out, and the blinds were drawn. This information was conveyed to Sergeant Muldoon and to police headquarters. Connelly observed a car matching the description of Plant’s vehicle in a parking lot across the street from the Plants’ residence. However, the car was driven away before Connelly could determine the identity of the driver. Connelly remained at the Plants’ home for approximately 30 to 45 minutes after the vehicle left and waited for its return.

Plant again spoke by telephone with Sergeant Muldoon between 8 and 8:15 p.m. He informed Muldoon that his car had broken down at approximately 73rd and Cedar Streets in Omaha. Muldoon advised Plant that an officer would pick him up there. Approximately 5 minutes later, when a police cruiser arrived at 73rd and Cedar Streets, neither Plant nor his car could be located.

At that time, Sergeant Muldoon, concerned about the missing children, contacted his superiors and requested that someone be sent to the Plants’ residence to check on the condition of the children.

Sergeant Muldoon received word from the intensive care unit at the hospital where Christopher was being cared for that Plant had been directly calling doctors there and requesting that his relatives speak with him on the telephone.

About 9:45 p.m., Sergeant Connelly was informed by Omaha Police Lieutenant Venditte that the location of the Plant children was still unknown, that conflicting accounts of their location had been given to Sergeant Muldoon, and that Connelly should proceed to the Plants’ home to again determine if the children were there. Connelly also spoke with Officer Christopher Toledo of the youth services unit. Toledo told Connelly of a recent report alleging that James Bartlett had suffered continual abuse by Thomas Plant.

[323]*323Sergeant Connelly and Officer Toledo proceeded to the Plants’ house, arriving there at approximately 9:55 p.m. Officer Jepsen met them at the home. The officers again received no response after knocking and announcing their presence. A next-door neighbor told Connelly that she had not seen anyone since the afternoon, when the children and their parents left in a vehicle. Connelly noted a tear in a shade in one of the windows of the Plants’ home that was not present during his first visit. The officer shined his flashlight through the window and saw no evidence that anyone was home.

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Bluebook (online)
461 N.W.2d 253, 236 Neb. 317, 1990 Neb. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-plant-neb-1990.