State v. Clifton

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State of Nebraska, appellee, v. Casey B. Clifton, appellant.

No. A-21-306

Court of Appeals of Nebraska

August 16, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Cass County: Michael A. Smith Judge.

Jeffery W. Davis and Gregory D. Kratz, of Smith, Schafer Davis, L.L.C., for appellant.

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

Moore Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Casey B. Clifton was convicted in the district court for Cass County of first degree sexual assault and incest. On appeal, he challenges the sufficiency of the evidence to sustain his convictions, the State's successful motion in limine, the overruling of his objection to a jury instruction, and the sentences the court imposed. Finding that the district court did not err in these regards, we affirm Clifton's convictions and sentences.

BACKGROUND

In August 2019, the State filed an initial information against Clifton, and it later amended the information to charge him with first degree sexual assault, incest, and third degree sexual assault of a child. The matter proceeded to a jury trial, at which the evidence established that Clifton, born in 1982, was the stepfather of K.R. born in 2002.

At trial, K.R. testified that she began to go through puberty in fifth or sixth grade. When she was in eighth grade, Clifton began showing an interest in her breasts, and he would comment on them, compliment them, and check them for lumps, both on top and underneath her clothing. She described her relationship with Clifton, detailing that around the time she was 16 years old, he would give her beer and wine, shower with her while they were both naked and make her demonstrate how she shaved her pubic area, kiss her with an open mouth, and show and talk about his genital area. He would also make her go in the family hot tub with him, and while there, Clifton would talk about sexual things, grab her thigh, make her straddle his lap, and kiss her. At night, he would come into her bedroom while she was sleeping and lay next to her, touch her, and grope her breasts and buttocks.

K.R. described two specific incidents that led to the criminal charges. The first occurred in February 2019, during a gathering her family held at their home. While she was using the bathroom, Clifton knocked on the door, and although she asked him to wait, he unlocked the door and walked in. He walked over to her, and when she stood up to wipe with toilet paper, Clifton used his finger to touch her "right below her clitoris," not on the clitoris itself but just below it, "like where you pee." She had not asked him to touch her or consented to him touching her, and he did not ask her permission to touch her. K.R. was asked, "When he touched you down there on the part where you pee, right below your clitoris, did his index finger or any part of his index finger or even a small portion of his index finger go past or enter your labia?" She replied, "Yes, without a doubt."

K.R. detailed a second incident that occurred in April 2019. While she and Clifton were in the hot tub together, he gave her a beer and began talking about the time in February when he had seen her vagina, referring to it as "cute." Clifton made K.R. show her genital area to him again. When they got out of the hot tub and K.R. went to get in the shower, Clifton followed her and got into the shower with her, naked, and kissed her. She got out of the shower and started drying off with a towel. He then picked her up, set her on the counter, and started rubbing her clitoris with his finger. While doing so, he repeatedly asked her if she "liked it," and she testified that she "was telling him no and asking him to stop." He continued making sexual comments to her, asking her if she wanted him to put his fingers in her vagina or put his tongue "down there." K.R. testified, "And I said, 'no; please stop.'" He then asked if he could "just do it for . . . 20 more seconds," and when she said "no" again, he finally stopped.

K.R. then got down from the counter and went into her bedroom. Clifton followed her into her bedroom where he watched her get dressed and made comments about her body and her underwear. After she got dressed and lay down in her bed, Clifton continued making sexual comments to her, asking if he could touch her again, if she would touch herself, and if she had any sex toys. K.R. testified that she kept saying no to him and that finally she "got very firm with him" and said, "'No, I'm not doing that; you're not doing that; you need to stop.'"

K.R. confirmed that she did not invite Clifton to touch her or consent to him touching her and that she told him to stop more than one time. She was asked whether, when he touched her while she was sitting on the counter, his finger went past or entered her labia, and she replied, "Yes, I know that that did happen."

Dr. Stacie Bleicher, a board certified pediatrician working at a child advocacy center, also testified at trial. She described the anatomical structure of the female genitalia, including that the skin folds of the labia extend around the urethra and up and around the clitoris. She explained that, therefore, in an anatomical sense, rubbing the clitoris or touching the urethral opening of a 16-year-old girl would constitute an intrusion into the genital opening of the girl's body.

A recording of a phone call that K.R. made to Clifton in May 2019 was admitted into evidence and played for the jury at trial. During the conversation, K.R. told Clifton that she was upset about the things that had been going on between them, like "the showering," and he acknowledged that. She said she knew it was wrong, "like when you rubbed my 'clit,'" and he replied, "Yeah." She stated, "I don't know why you did that," and he responded, "And the whole thing is like the two of us don't need to be drinking in the hot tub." He then commented that it was "not sexual, I mean it is sexual but it's not like I was aiming to have sex with you." He clarified, "I wasn't rubbing you to like . . . I don't know, honey, to tell you the truth." Then she reminded him, "But you kept saying 'does it feel good,'" and he replied, "Yes, I know and I shouldn't have, like I said I had 6 beers in 1 hour and I don't need to do that with you." At one point he acknowledged, "I shouldn't have touched you there" and repeatedly assured her that it would never happen again. He also warned her that "if this goes out, I'm going to the penitentiary." He continued that he would also have to get a divorce from her mother and leave his children "over something that was dumb."

Clifton testified in his own defense at trial, and his version of events differed from those K.R. described. According to Clifton, while K.R. was growing up, she would go to him with all of her questions and confide in him about life, sex, and boys. He denied ever fondling her breasts or buttocks and denied ever showering with her.

He testified that during K.R.'s sophomore year of high school, she approached him because she was uncomfortable with her genitalia, claiming that she has something she called a "pee-er" that "hangs out of her vagina" approximately one-half inch. He disagreed that the February 2019 incident occurred the way that K.R. described. Instead, he testified that the bathroom door was open while K.R. was using the bathroom and that when he walked in, she was standing and complaining about her "pee-er," and he told her that it was "cute" but denied touching her.

With respect to the April 2019 incident, Clifton testified that he and K.R. were in the hot tub together when she complained that a friend was "picking on her" about her "pee-er." According to Clifton, when they got out of the hot tub, K.R. asked him, "Will you show me what I have going on?" and he agreed, so she sat up on the counter, and he "poked" her "pee-er" and told her to take care of herself and not worry about what anyone thinks of her vagina at age 16. He denied following her into her bedroom or making sexual comments to her and claimed that he simply went upstairs and the incident ended.

At trial, Clifton acknowledged that in the recorded call, K.R. asked him about rubbing her clitoris. He claimed, however, that during the call, he thought she said "rubbing it" rather than "rubbing my 'clit'" and that he acknowledged doing so because he had "rubbed her 'pee-er.'"

The jury found Clifton guilty of first degree sexual assault and incest. The court sentenced him to 15 to 20 years' imprisonment for sexual assault and to a consecutive term of 10 to 15 years' imprisonment for incest. Clifton timely appeals.

ASSIGNMENTS OF ERROR

Clifton assigns that the district court erred in (1) confirming the jury's verdict when it was not supported by sufficient evidence, (2) granting the State's motion in limine precluding him from adducing evidence of K.R.'s sexual orientation or mental health status, (3) allowing a jury instruction containing a definition of sexual penetration that was biased and prejudicial, and (4) imposing excessive sentences.

STANDARD OF REVIEW

In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution...