State v. Efren C. (In re Interest of Angel C.)

IN RE INTEREST OF ANGEL C., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. EFREN C., APPELLANT.

No. A-18-1158.

NEBRASKA COURT OF APPEALS

November 5, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Separate Juvenile Court of Douglas County: CHRISTOPHER E. KELLY, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Noelle M. Obermeyer for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony M. Hernandez, Laura E. Lemoine, and Katherine G. Corwin, Senior Certified Law Student, for appellee.

MOORE, Chief Judge, and PIRTLE and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Efren C. appeals the adjudication of Angel C. as a minor child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Angel was removed from Efren's home after Angel's stepsister accused Efren of inappropriately touching her. Efren contends that the juvenile court erred in excluding certain evidence, in finding there was sufficient evidence to adjudicate Angel, and in failing to grant a continuance. For the reasons stated below, we affirm.

II. STATEMENT OF FACTS

Efren and his wife, the victim's mother, reside in a home with Angel, age 7. Also residing in the home were the victim's mother's son, age 14, and daughter, age 12. On April 27, 2018, Efren's 12-year-old stepdaughter (hereinafter referred to as the victim) reported that Efren had inappropriately touched her. The following day, the State filed a juvenile petition alleging that the parties' three minor children were juveniles within the meaning of § 43-247(3)(a) due to Efren's faults or habits. Specifically, the petition alleged that Efren subjected a child to inappropriate sexual touching and sexual situations; that Efren failed to provide proper parental care, support, and/or supervision; and that due to these allegations, the parties' three minor children were at risk of harm. That same day, the parties' three minor children were removed from their home. This appeal involves only one of the minor children, Angel.

1. ADJUDICATION HEARING

The adjudication hearing was held over 3 days in September, October, and November 2018. The day before the scheduled adjudication hearing, the mother and Efren filed a joint motion to continue the adjudication hearing on the basis that the victim had accused a sibling of inappropriate sexual contact, that a new witness had just been identified as an unnamed visitation worker, and that it was imperative to both the mother and Efren's defense that the visitation worker be identified and located so that the individual could be brought to testify before the court. The State clarified that the information was also new to the State and that "there's a belief that the child made an allegation against a sibling, not that there actually [was a sexual assault committed]." The juvenile court acknowledged that the parents' concern was related to "having the ability to possibly make a showing with respect to [the] credibility of the child who is endorsed to testify here today." The court declined to delay the start of the adjudication hearing, but stated it might entertain another motion to continue "as we get deeper in."

(a) Adjudication Hearing--Day 1

During the first day of the adjudication hearing, the State adduced testimony from the victim and Omaha police officer Shannon Knuth.

The victim testified Efren is her stepfather and, during the period of time when she was between 11 and 12 years old, he made her feel uncomfortable on approximately ten different occasions. The victim described the first occasion as having occurred in the kitchen when Efren came up from behind her and started hugging her and touching her breasts, vaginal area, and buttocks over her clothes. The victim did not tell her mother because she did not think that her mother would believe her. The victim testified that this happened more than once and that on some of the other occasions, Efren would put his "private part" against her "butt" over her clothes. The victim described another occasion when she entered Efren's bedroom to tell him goodnight and he touched her buttocks.

On cross-examination, the victim admitted that when she was "little," she lied when she told relatives that she did not have any change leftover after making a purchase. The victim testified that she had a cell phone during the first 2 weeks of January 2018, but her parents took the cell phone because she did not help with chores at home. Efren's counsel asked the victim ifshe had a Facebook account and the State objected on the basis of relevance and Neb. Evid. R. 412, Neb. Rev. Stat. § 27-412 (Reissue 2016). Efren's counsel stated:

Judge, this gets to motive as the timeline of events, per the parents, establishes that they took [the victim]'s phone away for her activity on that phone, and I would like to address . . . why that upset [the victim] and why that might speak to motive to fabricate.

[GUARDIAN AD LITEM FOR THE CHILDREN]: Your Honor, I would object on foundation and to the contents of the messages. I think that she can ask [the victim] about whether or not her parents did something to make her be mad at them, but I don't think that the contents are relevant to establishing motive, just the actions taken by her parents.

[STATE'S ATTORNEY]: And, Your Honor, this also falls under 412. They're going to try and show that any type of sexual stuff that may or may not have happened on Facebook may have caused this, that it's sexual in nature. They didn't provide any notice. There's a two-week requirement of notice and a motion that should be heard to see if that information will be admissible in a civil trial under 412. That wasn't done. There was no notice given that they're going to be presenting this. If it's not sexual in nature, then it wouldn't be relevant.

So I would ask that it be inadmissible, the entire line of questioning regarding Facebook.

THE COURT: Well, I'm not going to -- I'm going to sustain the objection, but . . . I'm not prohibiting the entire line of questioning, but Facebook is off the table now. Go ahead.

[EFREN'S COUNSEL]: Your Honor, if I may make the same show of proof that I made regarding the previous statement under the 412 with the case law in State v. Lavalleur.

THE COURT: Go ahead.

[EFREN'S COUNSEL]: And that case, again, allowed the admission being that the information was to establish motive and not just as evidence of past sexual predisposition, presexual behaviors. So just for clarification purposes, I can't ask the client if she has a Facebook account? Because that's the only question I've asked.

THE COURT: I'm not going to let you get into what's in any Facebook account, so Facebook is off the table.

Efren's counsel clarified:

Judge, just so we have a clear record, I anticipate that you would make the same ruling as you did with Facebook and the cell phone with regards to any other information that I would inquire about for Snapchat, WhatsApp, the Boost Mobile text message feature on the phone in question. And so I would . . . just like to make the record clear that I would like to make a line of inquiry, but I'm anticipating a limitation from the Court, and I would ask a show of proof be made with reference to all of those other messaging systems and phone content.

THE COURT: You can make your offer of proof.

[EFREN'S COUNSEL]: Okay. And, Judge, I would make the same offer of proof, that I believe that this is an exception to the 412 rule under the same case cited, [State v. Lavalleur,] 289 Neb. 102, [853 N.W.2d 203 (2014),] where information went to establish motive and is meant -- clearly, the statute is meant to stop harassing and humiliating the witness; however, this would be a Sixth Amendment Right of my client to confront the witness and speak, specifically, to motive and reason to falsify information.

THE COURT: I guess I should know would there be an objection to that line of questioning from any party?

[STATE'S ATTORNEY]: Yes, Your Honor, there would be an objection from the State. And the State would also argue that the confrontation clause has never been found to be admissible or a requirement in civil matters. And this is a civil matter. The first line of the Sixth Amendment is in all criminal actions.

THE COURT: And does that conclude your offer of proof. . . .

[EFREN'S COUNSEL]: Yes.

THE COURT: The objection is sustained.

As its second witness, the State called Knuth, who testified that she works in the child victim sexual assault unit. Knuth became familiar with the victim after the victim made allegations that Efren had inappropriate sexual contact with her. After conducting an investigation, Knuth arrested Efren for the felony offense of third degree sexual assault of a child. Knuth also testified that she determined that the victim and other children were at risk for harm if they remained in the home. Knuth testified that, during her interview with the victim's mother, the mother indicated that she did not believe the victim's allegations against Efren. Knuth testified that the mother identified that 3 or 4 years ago, when the parties lived in Mexico, the victim had made another allegation of sexual assault. The victim's mother indicated that the false nature of that prior allegation was one reason she believed that the victim was lying in the current case. Knuth also testified that the mother attempted to show her the victim's phone because the victim "was still talking to the boy that allegedly sexually assaulted her in Mexico" and this boy was "older." Knuth also testified that the mother told her that "she had [the victim's phone] that day, and . . . she had taken the phone away from [the victim] and that's why [the victim] was making up these allegations." Knuth testified that, although the mother attempted to show her text messages on the victim's...