State v. Farley

1

State of Nebraska, Appellee, v. Kenneth R. Farley, Appellant

No. A-23-138

Court of Appeals of Nebraska

March 5, 2024

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 Lancaster County: RYAN S. POST Judge. Affirmed.

Sarah Newell, of Berry Law Firm, for appellant.

Michael T. Hilgers, Attorney General, and P. Christian Adamski for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE JUDGE.

I. INTRODUCTION

Kenneth R. Farley appeals his conviction and sentence for first degree sexual assault of a child following a jury trial in the district court for Lancaster County. Farley claims that the district court erred when it denied his motion to sever; granted the State's motion in limine; issued a supplemental jury instruction; made various evidentiary determinations; and denied his motion for a new trial. Farley also claims his sentence is excessive. For the reasons contained herein, we affirm.

II. STATEMENT OF FACTS 1. BACKGROUND AND CHARGES

This case arises from allegations of child sexual assault against Farley made by E.J., Farley's stepdaughter; T.B., the biological niece of Farley's wife; and M.N., Farley's biological niece.

On January 6, 2021, Farley was charged by complaint in the Lancaster County Court with three counts of first degree sexual assault of a child, a Class IB felony in violation of Neb. Rev. Stat. § 28-319.01. The three counts corresponded to the alleged assaults of E.J, T.B., and M.N, respectively.

An affidavit of probable cause by a Lincoln Police Department officer was filed the same day. The affidavit stated that on May 23, 2020, the Nebraska Child Abuse and Neglect Hotline received a report indicating that E.J. had disclosed being sexually abused by her stepfather, Farley, between the ages of 5 and 9 years old.

The officer later forensically interviewed E.J. who disclosed that beginning at age 5 or 6, Farley began to touch E.J. inappropriately. E.J. alleged that Farley exposed his penis to her multiple times, made her watch pornography with him, made lewd comments to her, digitally penetrated her vagina once, and twice penetrated her anus with his penis. E.J. stated that the sexual abuse stopped when she was 10 years old and that all incidents occurred in the family home. E.J. reported that while she was disclosing Farley's abuse to her cousin, T.B., T.B. told E.J. that she had also been sexually abused by Farley.

The officer also interviewed T.B., who reported that when she was 9 or 10 years old, T.B. was spending the night at Farley's home while her mother cared for a sick family member. T.B. awoke that evening to Farley touching her vagina. T.B. denied that Farley had digitally penetrated her vagina and stated that the touching was an isolated incident.

A few months into law enforcement's investigation, the officer interviewed M.N., who stated that when she was 12 or 13 years old, she was removed from her parents' custody and placed in the care of Farley and his wife. During this time, Farley would enter her room at night and digitally penetrate M.N.'s vagina. M.N. also reported that Farley made her perform oral sex on him more than 10 times and once Farley orally penetrated her vagina. At times, Farley also attempted to penetrate her vagina with his penis. M.N. also described Farley making her watch pornography with him at least 10 times.

The case was subsequently bound over to district court and Farley was charged by information with identical counts.

On July 15, 2022, Farley filed a motion to sever, seeking three different trials, one relating to each of the alleged victims. A hearing on the matter was held on August 29, at which time Farley offered depositions of the three alleged victims and the law enforcement investigators who had worked on the case. We note that in T.B.'s deposition she made additional allegations that Farley had repeatedly touched, though not digitally penetrated, her vagina when she was around 12 years old.

At the hearing, Farley argued that the joinder of his charges was unfairly prejudicial because the charges did not arise out of the same act or transaction and, when charged together, was likely to taint his presumption of innocence. Farley also argued that although some of the time periods in the information overlapped, the charges were not closely linked in time, place, or circumstance, and the testimony of the alleged victims demonstrated differences in the circumstances of each alleged instance of sexual abuse.

In an order entered on September 19, 2022, the district court denied Farley's motion to sever. The court found that the charges were joinable under Neb. Rev. Stat. § 29-2002(1) (Reissue 2016) because all three were alleged violations of the same statute and the alleged incidents had occurred when the victims were between ages 8 and 14 years old, at Farley's home, and Farley was either the uncle or stepfather of each victim. Further, the alleged incidents for each victim were not isolated, but rather occurred over a period of time.

When determining whether joinder would be prejudicial to Farley, the district court noted that each victim had alleged different instances of touching and/or penetration at different ages and in different locations of Farley's home. However, Farley did not explain why evidence of one of the alleged sexual assaults would be inadmissible in separate trials on the other charges. While the charges were of the same or similar character, the court found that Farley would not be prejudiced by joinder of the three counts under § 29-2002(3), as the evidence for each was sufficiently simple and distinct and the jury would be able to easily separate evidence of the charges during deliberations.

The information was amended on November 17, 2022, and again on November 18 to reflect slightly different date ranges.

2. TRIAL

A jury trial was held over 7 days in November 2022. Additional details will be set forth as needed in our analysis section below.

(a) Notice Regarding Daubert/Schafersman Hearing

On November 14, 2022, the State filed a motion in limine, seeking to preclude Farley from introducing any evidence that M.N. had been adjudicated as a juvenile. The district court took up the motion on the first day of trial in the absence of the jury.

Farley argued that M.N.'s juvenile record went to her motive and explained her delayed disclosure. He asserted that M.N.'s accusation of Farley was an attempt to "divert attention from her own behaviors at that time, to getting out of the [juvenile court] system." Farley also noted that the defense's expert would testify regarding psychological research which demonstrates that "teens who have a diagnosis or have indicators of adolescent conduct disorder have a higher rate of untruthful disclosures." Though the defense expert could not diagnose M.N., the expert had reviewed her deposition and self-reported information, which contained various indications of adolescent conduct disorder.

The district court asked Farley whether he anticipated needing a Daubert/Schafersman hearing before his expert testified, and Farley responded: "That's up to the State." The State agreed that the hearing may be necessary should the defense expert's testimony specifically address M.N. The court noted that the necessity of the Daubert/Schafersman hearing could be resolved later during the trial. The court temporarily sustained the State's motion in limine as to M.N.'s juvenile adjudication, stating that it wanted to research the issue further.

(b) E.J.'s and T.B.'s Testimony

Both E.J. and T.B. testified at trial and their respective testimony was generally consistent with the information contained in the affidavit of probable cause described above. However, we need not detail their testimony further as Farley was not convicted of the charges regarding them. We address the evidentiary issues relating to these alleged victims in the analysis section below.

(c) M.N.'s Testimony

M.N testified that she was born in February 2004 and entered foster care in June 2015. M.N. lived with a foster family for approximately 6 months before she was placed in the care of Farley, her mother's brother. M.N. was then placed with another foster family in July 2017.

M.N. described her relationship with the two other alleged victims in the case. M.N. had contact with T.B. while M.N. was living with Farley and his wife but noted that it was inconsistent and mostly occurred during extended family events. M.N. was friends with T.B. on Facebook, though she had not directly contacted T.B. since she moved out of Farley's home. M.N. stated that she was very close with E.J. when the two were living together in Farley's home. M.N. and E.J. had not spoken much since M.N. moved out.

M.N. testified that her first sexual encounter with Farley occurred a few months after she had been placed in his home. M.N. was naked and taking a shower in the master bathroom when Farley entered to ask her a question. Farley then approached M.N. and digitally penetrated her vagina and asked if the action "felt good."

M.N. and Farley would work out together in his home gym. During these workouts Farley would grope M.N.'s buttocks, legs, and vagina both under and over her clothes and made comments about her physical appearance. Farley would also have M.N. rub his penis with her hands.

M.N described two instances where Farley began to perform oral sex on her. Both times the act lasted 3 to 5 minutes before M.N. told Farley to stop and he complied. During the second instance, Farley also attempted to penetrate her vagina with his penis, but...