State v. Schrein

504 N.W.2d 827, 244 Neb. 136, 1993 Neb. LEXIS 220
CourtNebraska Supreme Court
DecidedSeptember 3, 1993
DocketS-91-518
StatusPublished
Cited by16 cases

This text of 504 N.W.2d 827 (State v. Schrein) 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. Schrein, 504 N.W.2d 827, 244 Neb. 136, 1993 Neb. LEXIS 220 (Neb. 1993).

Opinions

Per Curiam.

Daniel D. Schrein was found guilty in a jury trial of five counts of sexual assault of a child, a Class IV felony. The Nebraska Court of Appeals reversed Schrein’s convictions and remanded the cause for a new trial. State v. Schrein, 1 NCA 1581 (1992). The State petitioned for, and this court has granted, further review pursuant to Neb. Rev. Stat. § 24-1107 (Cum. Supp. 1992). We reverse the judgment of the Court of Appeals.

FACTUAL BACKGROUND

Schrein was a pediatrician practicing for many years in Omaha, where he also organized and coached a youth sports organization known as The Gladiators. In September 1990, Schrein was arrested on five charges of sexual assault of a child. Testimony at Schrein’s trial included that of 15 young men who claimed that Schrein had molested them. In addition, expert testimony was presented which contradicted Schrein’s claim that his actions were a normal part of treating his young male patients. Defense witnesses included Schrein himself, numerous former patients, members of The Gladiators and their parents, and an Omaha pediatrician who testified regarding the treatment of young males. The jury found Schrein guilty on all five counts.

Schrein appealed his conviction to the Court of Appeals. In that appeal, the principal question was the admission of a Redbook magazine article on pedophilia offered by the State to rehabilitate the testimony of one of the State’s witnesses, Sgt. Kenneth Bovasso. During direct examination, Sergeant Bovasso testified that he supervised the robbery and sexual assault unit of the Omaha Police Division and had worked on the Schrein case. On cross-examination, Sergeant Bovasso testified as follows:

[138]*138Q-... Didn’t you talk to [M.M.]?
A- Yes, I said I did, yes.
Q- Wasn’t there some discussion with her about pedophiles?
A-Yes.
Q- Didn’t you give her literature on pedophiles?
A-1 told her that we— .
Q- Just answer yes or no. Did you tell her that Dr. Schrein was a pedophile?
A-No.
Q- Did you make that implication?
A-1 — No.
Q- Why did you give her literature on pedophiles?
A- Because we were investigating a case possibly of that nature.
Q- Okay. And you were convinced and told her that Dr. Schrein was a pedophile; isn’t that true?
A-1 didn’t tell her that Dr. Schrein was a pedophile.

On redirect, the prosecutor gave Sergeant Bovasso exhibit 60, a photostatic copy of the article regarding pedophilia published in the August 1987 issue of Redbook magazine and asked:

Q-... Officer, did you give that article to [M.M.]?
A-Yes.
Q- Did you give it to anybody else connected to the investigation?
A-Yes.
Q- Do you know who else or how many others?
A- Several others, but I know [another mother] got a copy of it.
Q- Is that a true and accurate copy of the article as you handed it out to [M.M.]?
A-Yes.
[Prosecutor]: I’d offer what’s been marked as Exhibit 60.
[Schrein’s lawyer]: I’ll object. It’s irrelevant____
THE COURT: Just a second, please. I believe on cross-examination, if I recall correctly, . . . you asked the [139]*139officer about the materials that he gave.
[Schrein’s lawyer]: I asked him if he gave [M.M.] something on pedophilia....
THE COURT: With that in mind, I think the exhibit will be received. The objection, therefore, is overruled.

Exhibit 60 was a copy of a five-page article entitled “The Child Abuser: How Can You Spot Him?” which appeared in Redbook magazine in August 1987 and was coauthored by a professor of psychiatry and his wife. The lead-in paragraph, printed in large, bold letters, proclaimed:

He’s a man you trust. He’s a man your children trust. He’s a teacher, a coach, a Cub Scout leader — someone your family knows well. And he’s much more likely to sexually abuse little boys than little girls, according to a landmark study of 403 sex offenders. In this shocking report, the doctor who headed the research team offers a profile of the typical child abuser — and tells you how to protect your children.

Gene G. Abel & Nora Harlow, The Child Abuser: How Can You Spot Him?, Redbook, Aug. 1987, at 98. In this article, the authors state:

Most of us think that a child molester is a rather slimy individual — a stranger in town, sitting in his car near a schoolyard, luring children with candy. Our findings reveal that, on the contrary, the child molester is not a stranger, but is someone we know well. He often is a man we trust, a man our children trust.
Many child molesters try to move themselves into positions or occupations within the community that will allow them to spend time alone with children without attracting much notice. Molesters often become youth ministers, day-care workers, Boy Scout leaders, teachers, Big Brothers and pediatricians.
. . . And indeed, among physicians — as among youth ministers, day-care workers and teachers — there are exceedingly few men who are child molesters. But there are a few. Of the several hundred molesters I’ve treated in the last two years, one was a school physician, two were child psychiatrists, another was a pediatrician.

[140]*140(Emphasis supplied.) Id. at 99. Finally, the article suggests that parents can spot a child molester by watching for typical operating procedures that include spending excessive amounts of time with children and arranging to take trips alone with children; seeking out positions, such as school physician or coach, that will allow them to spend time alone with children; and abusing the privileges of their positions to engage children in inappropriate activities.

Later, after exhibit 60 had been received in evidence, the exhibit was the subject of an in-chambers discussion:

[Schrein’s lawyer]: My question is: What was the purpose of the offer? What were they trying to prove with that offer? Unless they can give you some representation of relevance then it shouldn’t be admissible. For example, Judge, if they offered a Playboy magazine simply because I asked the question and they offered it, you wouldn’t let the Playboy in because you’d have to have something relevant to this case. And I’m saying what does that article got [sic] to do with whether Dr. Schrein’s guilty of the charges?

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Cite This Page — Counsel Stack

Bluebook (online)
504 N.W.2d 827, 244 Neb. 136, 1993 Neb. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schrein-neb-1993.