State v. Schon

418 N.W.2d 242, 227 Neb. 482, 1988 Neb. LEXIS 24

• Court: Nebraska Supreme Court
• Decided: January 29, 1988
• Docket: 86-1011
• Status: Published

Opinions

Colwell, D.J., Retired.

Charles Schon, defendant, appeals a Douglas County Court conviction of third degree sexual assault, Neb. Rev. Stat. § 28-320 (Reissue 1985), which, on appeal, was later affirmed by the district court. The only assigned error is that the evidence was insufficient to sustain the conviction; particularly, that there was a lack of independent corroboration. We affirm.

The alleged assault occurred on February 4, 1986, when defendant, age 31 years, was living in Omaha, Nebraska, with his wife, Pamela, and her 6-year-old daughter, M.G., the victim. Sometime after 10:20 that night, when Pamela was working away from the family home, the defendant was babysitting M.G. and entertaining two friends, a female, described as “practically” a prostitute, and amale friend. M.G. testified that defendant pulled her nightgown up, held her legs, and “[k]issed [her] down there,” with “down there” later described as her genitals. Defendant then used vile language in threatening physical punishment to M.G. if she ever told anyone about the incident. M.G. reacted by becoming afraid of the defendant. Defendant described the threats as a means of teasing. Pamela testified that following February 4, she noticed changes in M.G.’s behavior, such as bad dreams and bedwetting. About 10 days after the incident, Pamela moved to her mother’s house in Omaha, taking M.G. with her. Shortly thereafter, M.G. related the details of the February 4 incident to Pamela, who notified the Omaha police. Officer Mary Bruner conducted an official police investigation.

Defendant was the only witness for his defense. He admitted being present at the time and place charged. He denied the alleged assault. The evidence shows that defendant was a heavy drug user at the time and that he had three prior felony convictions, Pamela, M.G., and Police Officer Mary Bruner testified for the State. Following his conviction, the defendant was sentenced to serve 180 days in confinement.

Section 28-320 provides:

(1) Any person who subjects another person to sexual contact and (a) overcomes the victim by force, threat of force, express or implied, coercion, or deception, or (b) knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree.

(3) Sexual assault shall be in the third degree and is a Class I misdemeanor if the actor shall not have caused serious personal injury to the victim.

The review on appeal by the district court was limited to an examination of the record for error, Neb. Rev. Stat. § 29-613 (Reissue 1985); State v. Smith, 199 Neb. 368, 259 N.W.2d 16 (1977).

“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.” (Syllabus of the court.) 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. Id.

Where a trial court has entered a judgment of conviction in a criminal case, that judgment will not be set aside on appeal for insufficiency of the evidence if the evidence sustains some rational theory of guilt. A judgment of conviction will not be reversed by the Supreme Court on appeal unless the evidence is so lacking in probative force that it is insufficient as a matter of law. State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987).

Bearing in mind that this court on appeal neither resolves conflicts in the evidence nor passes on the credibility of the witnesses, State v. Jackson, 222 Neb. 384, 383 N.W.2d 794 (1986), the evidence shows that the victim’s descriptions of the assault and the surrounding circumstances that she related to her mother, to the investigating officer, and during her incourt testimony, were direct and consistent in establishing the sexual assault charged in the complaint. The corroboration of the material facts and circumstances of the assault was shown by the changes in the victim’s habits, crying, and fear of the defendant, followed by the report to the police that was made within a reasonable time after the assault.

The evidence here is not unlike State v. Aby, 205 Neb. 267, 287 N.W.2d 68 (1980), where the victim, age 10 years, did not report the assault for more than 3 months after the event. There, we found that the record as a whole supplied corroboration and supported the conviction.

Affirmed.

Wh ite , J., concurs in the result.