State v. Anders

311 Neb. 958

977 N.W.2d 234

STATE of Nebraska, appellee,

v.Douglas H. ANDERS, appellant.

No. S-21-413.

Supreme Court of Nebraska.

Filed July 15, 2022

Douglas H. Anders, pro se, and Timothy S. Noerrlinger, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Douglas H. Anders appeals from his conviction and sentence for first degree sexual assault. At the conclusion of a bench trial, the court found that Anders exploited his position as K.G.’s Olympic trainer and sexually penetrated her through deception and coercion. Anders primarily challenges the sufficiency of the evidence to support his conviction. He also asserts that his sentence was excessive and that his trial counsel was ineffective. Finding no merit to his appeal, we affirm.

II. BACKGROUND

The State charged Anders with first degree sexual assault, a Class II felony, pursuant to Neb. Rev. Stat. § 28-319(1) (Reissue 2016). The State alleged that Anders sexually penetrated K.G. under the guise that it was necessary to aid in her physical recovery from athletic training.

A bench trial was held where the State and Anders offered evidence. In this section, we summarize testimony and facts pertinent to the instant appeal, viewed in the light most favorable to the State. In the analysis section below, we provide additional facts where necessary.

1. STATE'S EVIDENCE

The State offered the testimony of multiple witnesses, including K.G., K.G.’s therapist, K.G.’s friends and family, M.C. (another woman who testified that she was sexually assaulted by Anders), and criminal investigators.

(a) K.G.’s Testimony

K.G. testified that Anders trained her at his commercial gym to become an Olympic weightlifter. During K.G.’s training, Anders performed "adjustments" to her, claiming that they would alleviate the pain and soreness she felt in her pelvis and legs. Anders would "adjust" K.G. by inserting his fingers into her vagina while she lay on a chiropractic bed.

K.G. testified that she was not yet 16 years old the first time that Anders performed an "adjustment" on her. K.G. remembered that her mom "pick[ed her] up" from the gym that day, because she "couldn't drive" yet. Anders was 35 years her senior. K.G. was uncomfortable and embarrassed by Anders’ actions, but she did not protest, because she trusted him and wanted to alleviate her pain.

Anders convinced K.G. to not tell anyone about the "treatment," because he claimed that although it was commonplace in the sports world, it was "taboo" to talk about it to others. Accordingly, K.G. generally kept Anders’ conduct a secret while under his training. K.G. never went to law enforcement and only discussed being sexually penetrated by Anders with a friend and her former boyfriend.

Anders’ "adjustments" progressed into what he called "sports massage[s]," where he would rub K.G.’s inner thighs. Anders told K.G. that there was a muscle in her thigh that was affecting the way her foot turned while lifting and that the "sports massage" was necessary to increase blood flow. These massages ended with Anders’ touching K.G.’s genital area. K.G. testified that Anders would often have an erection while massaging her. Again, K.G. was uncomfortable; but because she believed his explanation, she did not protest.

Anders’ conduct advanced further. Eventually, Anders started inserting foreign objects into K.G.’s vagina to "stimulat[e]" recovery. This progressed over time to penetrating her vagina with his penis.

K.G. testified that she initially "refuse[d] any type of penetration by [Anders] and, usually, that was a boundary that was pushed." According to K.G., no matter how many times she protested being sexually penetrated by Anders, he would insist that it was necessary for her "recovery" until she just "caved and just submitted to [it]."

Several times, K.G. expressed her desire that the touching "not be part of the training" and that she "still want[ed] to be an athlete and do weightlifting[,] but [she didn't] want to continue with the other stuff." However, when K.G. would bring this desire to Anders, he would get upset and threaten to stop training her or kick her out of his gym until she begged him to return. K.G. always begged to return, because Anders had manipulated her into believing that she would not achieve her Olympic dreams if he did not train her.

K.G. testified that Anders manipulated her in other ways as well. Anders isolated K.G. from her social life and demanded that she focus her attention on training. Anders told K.G. that she needed to "get more focused, more serious" about her training and "[could not] necessarily go out Friday nights because [she] had to be in the gym to train on Saturday." When K.G. was not at his gym, Anders would text her, asking if she was " ‘home yet.’ " Consequently, K.G. stopped socializing with her friends, because she "had to be serious and focused." It came to the point where she would "first ask him if [she] could go." K.G. also began working at the gym.

Anders’ actions became "less adjustment, less massage, more just intercourse whenever he wanted, whenever it was convenient, whenever there was an opportunity." K.G. testified that the sexual intercourse became such a "normal part of [her] being at the gym" that she would initiate it with Anders on occasion.

After 8 years, K.G. finally stopped training under Anders and permanently left the gym. K.G. then told her parents that Anders had been sexually abusing her and sought therapy.

Anders’ conduct was finally brought to the attention of law enforcement when K.G.’s therapist complied with his legal obligation to report sexual abuse to authorities. After law enforcement launched an investigation into Anders, K.G. talked to investigators and gave them the cell phones that she used during and after her time at Anders’ gym.

(b) M.C.’s Testimony

M.C. testified to similar conduct by Anders directed toward her. M.C. also trained and worked at Anders’ gym. M.C. claimed that he had sexually assaulted her.

Before trial, Anders filed a motion in limine to bar M.C. from testifying under Neb. Rev. Stat. § 27-414 (Reissue 2016). The court held a hearing where M.C. testified regarding those events. After the hearing, the court overruled Anders’ motion in limine and allowed M.C. to testify at trial. At trial, Anders did not renew his objection when the State called M.C. to testify.

At trial, M.C. testified that Anders performed some "adjustments or chiropractic measures" on her for pain that she was suffering. Anders never inserted his fingers into M.C.’s vagina during these sessions. However, M.C. suffered a broken tailbone at one point in her training and Anders claimed he could "fix [her] broken tailbone" by inserting his fingers into her vagina to "correct" it.

M.C. was skeptical of Anders’ claim, because he was not a doctor. Anders responded to M.C.’s skepticism by asking to do an initial examination on her to see if treating her tailbone was "even possible."

After M.C. agreed to the initial procedure, Anders placed his hands on her inner thigh near her genital areas, moved his hands up to "where [her] leg connects to [her] pelvis," and moved his hands over her breasts before ending the procedure. Anders informed her that he could "fix" her tailbone, but M.C. told him she needed time to think it over.

However, M.C. never decided whether to consent to Anders’ "treatment," because she was permanently "kicked out of the gym." A few days after Anders’ examination of M.C., K.G. confronted her about arriving late to the gym. M.C. discussed the matter with K.G. in a private room, where she explained she believed Anders was manipulating K.G. Anders then "burst in" the room and told M.C., "that's it, you're out." M.C. left and never went back to the gym.

(c) Investigators’ Testimony

The State called multiple investigators to detail their investigation into Anders and the collection of evidence presented in the case. Some of the most notable testimony by the investigators regarded K.G. and Anders’ cell phone communications.

An investigator testified to receiving phone records from K.G.’s phone carriers and recovering two phones from K.G. and one phone from Anders. The phone carriers’ records listed K.G.’s phone number and stated that 62.56 percent of all communications to K.G.’s phone number were either to or from Anders’ phone number. Anders provided the investigator with his number.

A second investigator testified that he used computer software to download text messages from two phones owned by K.G. and one phone owned by Anders. The phones matched K.G.’s and Anders’ phone numbers. The investigator explained that some text messages could not be retrieved, because they had been deleted. However, the investigator was able to recover some messages that were marked for deletion but had not yet been removed from the phones’ databases.

The State introduced the text messages that investigators recovered as exhibits. As an example, Anders texted K.G. that "I need some," to which she responded, "I'd give some but my tailbone [is] sore." Another text Anders sent to K.G. stated, "No candy touching my LIPS ... UNLESS [it's] ON YOURS." Yet another text message included K.G.’s mentioning taking a nap with Anders after "bang[ing]."

(d) Other Witnesses

K.G.’s friend and her former boyfriend testified that while K.G. was still training under Anders, she told them about his sexual abuse. K.G.’s father also testified. While K.G.’s father was not aware of the sexual abuse until after she left the gym, he confirmed her general timeline of events (her training schedule, the amount of time she spent at the gym, her informing him of the abuse after she permanently left the gym, her decision to seek counseling, et cetera). Further, Anders’ ex-business partner testified that he saw Anders and K.G. kissing in the gym's spa area.

At the conclusion of the...