State v. Tlamka

511 N.W.2d 135, 1 Neb. Ct. App. 612, 1993 Neb. App. LEXIS 176
CourtNebraska Court of Appeals
DecidedMarch 30, 1993
DocketA-91-664
StatusPublished
Cited by3 cases

This text of 511 N.W.2d 135 (State v. Tlamka) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tlamka, 511 N.W.2d 135, 1 Neb. Ct. App. 612, 1993 Neb. App. LEXIS 176 (Neb. Ct. App. 1993).

Opinions

Sievers, Chief Judge.

Frank Tlamka appeals his conviction in the district court for Lancaster County of first degree sexual assault on a child, a Class II felony. We examine the important issue of the admissibility of a child victim’s statement to a police officer, as well as psychological testimony designed to bolster the defendant’s denial of guilt.

FACTUAL BACKGROUND

The information filed against Tlamka charged that on July 22,1990, he subjected J.H., then not quite 5 years old, to sexual penetration in Lancaster County. At the time of the offense, Tlamka was 61 years of age and had maintained a long-term relationship, including part-time residence, with the victim’s grandmother Arlene. On July 22, Tlamka and Arlene came to Lincoln to the victim’s home. Arlene and J.H.’s mother went shopping, J.H.’s father was at work, and Tlamka stayed with J.H. and her 1-year-old sister to babysit.

The evidence establishes that Tlamka had a good relationship with Arlene’s sons. Tlamka also had an extremely close relationship with J.H., and witnesses described them as inseparable. Tlamka apparently regarded J.H. as he would a [614]*614natural granddaughter, and she referred to him as “Po-po.”

After the shopping trip and after J.H.’s father returned home from work, Tlamka had a conversation with the father in which Tlamka indicated that the parents should keep their bedroom door shut at night “when [they] were making love because [J.H.] is starting to talk about what [they] were doing in there.” Tlamka further told the father that J.H. had told him, “ T saw mommy putting daddy’s weiner in her mouth ....’” After Tlamka and Arlene left J.H.’s residence, her father told her mother about Tlamka’s warning, and the father testified that J.H. unexpectedly came “around the corner and she told me, T saw Po-po’s weiner.’ ” When briefly questioned by her parents, J.H. indicated that it had been placed in her mouth by pointing to her mouth with her finger.

J.H.’s mother testified that on the following day J.H. approached her with a naked “Ken doll” and said, “ ‘This is what Po-po looked like when you were shopping, mama.’ ” At this point, the parents decided to seek the assistance of their pastor, which resulted in the police being called. J.H. was interviewed at her home on July 25 at approximately 7 p.m. Sgt. Mark Lantis of the Lincoln Police Department used anatomically illustrative dolls in the interview and asked J.H. to show him what had happened, imagining that the male doll was Tlamka. J.H. related that Tlamka had taken her clothes off. When asked if Tlamka kept his clothes on, she replied, “ ‘No.’ ” In response to Lantis’ question, she undressed the male doll, with the exception of the underwear. When asked again if that was how Tlamka was dressed, she hesitated and then said, “ ‘No.’ ” When asked to show Lantis, she pulled the underwear down so that the penis on the doll was exposed. Lantis described her as hesitant at that point to use the dolls, so he asked her to show the rest of what happened by using the male doll and herself. J.H. placed the male doll between her legs, rubbing the penis against her vaginal area and then against her stomach and her nipples. She then turned over, laid on her stomach, and rubbed the male doll against her buttocks area.

Lantis asked J.H. questions in addition to having her use the dolls. The effect of that questioning was that J.H. said that there had been vaginal penetration, but not anal penetration, [615]*615and that Tlamka had placed his penis in her mouth. Lantis further inquired as to whether this had happened anyplace other than Lincoln, and J.H. responded in the affirmative. When asked how many times, J.H. held up two fingers and told Lantis that the other time had happened “ ‘ [w]hen we stayed at grandma’s.’ ”

A medical examination of J.H. was performed on July 26 by Dr. Kristin Johnson, after she took a history from J.H. J.H. reported the same acts by Tlamka as she had reported to Lantis. The physical examination showed that J.H.’s genital area was normal for a female of her age and that her hymen was intact and measured 3 mm, which was normal for a child of her age. Dr. Johnson testified at trial that she found no physical evidence whatsoever of sexual assault or abuse.

By way of defense, Tlamka denied ever having any inappropriate sexual contact with J.H. He testified that on July 22, J.H. had wanted him to lie down with her at nap time and that he had lain down on a rug beside her bed. She got out of bed, sat next to him, and, according to Tlamka, brushed her hand across his groin area and then “made a kissing sound.” Tlamka expressed surprise and asked her what she was doing, at which time J.H. said that she had seen her parents do such things. Tlamka stated he had explained to J.H. that her parents did those things because they were married. That was the end of the conversation, except that he later informed J.H.’s father that he and J.H.’s mother should close the bedroom door, as J.H. was talking about what her parents were doing.

Tlamka also introduced the testimony of Dr. Rodney Taylor, a urologic surgeon from Omaha. Dr. Taylor testified that he had obtained a history from Tlamka of being unable to achieve an erection for approximately 10 years. He also related a history of peripheral vascular disease, including surgery in 1979 consisting of a bilateral sympathectomy. Dr. Taylor performed a nocturnal penile tumescent study in a sleep laboratory to monitor Tlamka and to determine whether he could achieve an erection while asleep. According to Dr. Taylor, the standard for such a dysfunction is nocturnal erection. Nocturnal erection testing is used because it differentiates between organic impotence, based on such things as inadequate blood supply or [616]*616impaired nerves, and psychogenic impotence, where due to stress or other factors the individual is unable to achieve an adequate erection while awake and alert, but will obtain adequate erections during sleep.

Dr. Taylor testified that a man of Tlamka’s age with a normal neurovascular supply intact would be expected to obtain four to six adequate erections each night during sleep, adequate being described as sufficient for vaginal penetration. Based on the two-night study, it was found that Tlamka had one partial erection one night and no erectile function at all the other night. Dr. Taylor’s opinion was that Tlamka had organic erectile dysfunction, which in his opinion is common in men who have peripheral vascular disease. According to Dr. Taylor, the individual cannot control the results of this test because he is asleep and the monitoring devices are designed to sound an alarm for the technician should they be dislodged or taken off. Dr. Taylor rendered the opinion that although his examination was conducted on January 22 and 23,1991, he felt that Tlamka could not have achieved an erection adequate for vaginal penetration on July 22, 1990. He also testified that impotency does not directly affect sexual desire and that an impotent man can achieve ejaculation.

- In addition to the foregoing evidence, Tlamka offered the testimony of his family physician of 16 years, his parish priest of 17 years, and his banker of 7 years, all of whom testified that Tlamka was an honest man who was trustworthy and had integrity.

ASSIGNMENTS OF ERROR

Tlamka assigns 11 errors; however, not all of them were discussed in his brief. We do not consider those assigned but not discussed. See State v. Melton, 239 Neb.

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State v. Tlamka
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Bluebook (online)
511 N.W.2d 135, 1 Neb. Ct. App. 612, 1993 Neb. App. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tlamka-nebctapp-1993.