State v. Knutson

288 Neb. 823

852 N.W.2d 307

State of Nebraska, appellee,

v.Shad M. Knutson, appellant.

No. S–13–558

Supreme Court of Nebraska.

Filed August 15, 2014

Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Criminal Law: Trial. A motion for separate trial is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed in the absence of a showing of an abuse of discretion.

2. Constitutional Law: Trial: Joinder. A defendant has no constitutional right to a separate trial on different charges. Neb.Rev.Stat. § 29–2002 (Reissue 2008) controls the joinder or separation of charges for trial.

3. Trial: Joinder: Appeal and Error. Under Neb.Rev.Stat. § 29–2002 (Reissue 2008), whether offenses were properly joined involves a two-stage analysis in which an appellate court first determines whether the offenses were related and joinable and then determines whether an otherwise proper joinder was prejudicial to the defendant.

4. Trial: Joinder: Appeal and Error. To determine whether the charges joined for trial are of the same or similar character, an appellate court looks at the underlying factual allegations.

5. Trial: Joinder: Proof. A defendant opposing joinder of charges has the burden of proving prejudice.

6. Trial: Joinder: Evidence: Jury Instructions. No prejudice from joined charges usually occurs if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. This is particularly true when the trial court specifically instructed the jury to separately consider the evidence for each offense.

7. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

8. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government.

9. Constitutional Law: Search and Seizure: States. The Fourth Amendment's protections are implicated whenever state action intrudes on a citizen's reasonable expectation of privacy.

10. Constitutional Law: Search and Seizure. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

11. Constitutional Law: Search and Seizure: Search Warrants. Under the Fourth Amendment, a warrant is not required to obtain telephone billing and toll records because obtaining them by subpoena does not constitute a search.

12. Constitutional Law: Search and Seizure: States. The violation of a state law restricting searches is insufficient to show a Fourth Amendment violation. The analysis turns on whether society recognizes an expectation of privacy deserving of the most scrupulous protection from government invasion.

13. Constitutional Law: Statutes: Evidence. Absent a constitutional violation, a court will normally suppress evidence obtained in violation of a rule or statute only if the governing law provides that remedy.

14. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing 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 is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

15. Statutes: Appeal and Error. An appellate court decides questions of statutory interpretation as a matter of law.

16. Criminal Law: Statutes: Legislature: Intent. A court gives penal statutes a sensible construction, considering the Legislature's objective and the evils and mischiefs it sought to remedy.

17. Statutes. Absent a statutory indication to the contrary, a court gives words in a statute their ordinary meaning.

18. Criminal Law: Statutes: Words and Phrases: Appeal and Error. An appellate court strictly construes penal statutes and does not supply missing words or sentences to make clear that which is indefinite or not there.

19. Criminal Law: Statutes: Appeal and Error. An appellate court will not apply a penal statute to situations or parties not fairly or clearly within its provisions.

20. Criminal Law: Statutes. Ambiguities in a penal statute are resolved in the defendant's favor.

21. Trial: Presumptions. Triers of fact may apply to the subject before them that general knowledge which any person must be presumed to have.

Connolly, J.

I. SUMMARY

The State charged Shad M. Knutson with five counts of sexual assault and child abuse involving four minor girls: T.P., M.K., E.M., and E.A. A jury found Knutson guilty of the charges involving E.A., but acquitted him of the charges involving the other three girls. The issues are whether (1) a joint trial on the offenses was proper, (2) Knutson's cell phone records should have been suppressed because the State obtained them by subpoena, and (3) the evidence was sufficient to support Knutson's convictions. We conclude that the court properly joined the offenses and correctly denied Knutson's motion to suppress his cell phone records. And we conclude that the evidence was sufficient to support Knutson's convictions for child abuse and child enticement for an illegal sexual purpose under Neb.Rev.Stat. § 28–320.02 (Cum.Supp.2012). We affirm.

II. BACKGROUND

Knutson taught at a public middle school in Omaha, Nebraska. T.P., M.K., and E.M. were students of Knutson when the alleged misconduct occurred. E.A. was not one of Knutson's students at the school, though she had attended school there and knew him. When E.A. moved on to high school, Knutson tutored her during her freshman and sophomore years, the period during which the alleged misconduct occurred.

1. Complaining Witnesses' Reports and Subsequent Investigation

In November 2009, T.P. reported Knutson to school officials for sexually inappropriate conduct. Following an internal investigation, school officials determined that there was no substance to T.P.'s allegations and she was moved to a different school. In December, M.K. reported Knutson to school officials for sexually inappropriate conduct. While conducting an investigation, Knutson was put on leave, but once school officials concluded there was no criminal conduct, they allowed him to return to teach. School officials did not forward either T.P.'s or M.K.'s allegations to the police.

In October 2010, E.M. reported Knutson to school officials for sexually inappropriate conduct. Soon after, E.M.'s mother reported Knutson to Child Protective Services, which led to a police investigation. During the investigation, E.A.'s name came up and police interviewed her. She initially denied any relationship or anything inappropriate happening between her and Knutson. But investigators obtained Knutson's cell phone records, which revealed that he had thousands of telephone contacts with E.A. When confronted with the cell phone records, and after seeing Knutson on the news, E.A. admitted to prosecutors that she and Knutson had been in a relationship.

2. Charges and Pretrial Motions

The State charged Knutson with sexual assault and child abuse involving the four girls. Before trial, Knutson moved to sever the charges. In his motion, Knutson argued that the charges were not joinable under Neb.Rev.Stat. § 29–2002(1) (Reissue 2008) and that, even if they were, joinder would prejudice him. But the court determined that the charges were of the same or similar character and that evidence of the alleged acts would be admissible against Knutson in separate trials. The court denied Knutson's motion to sever.

Before trial, Knutson also moved to suppress his cell phone records, which the State had obtained by subpoena. In his motion, Knutson argued that the State's use of subpoenas was improper because it violated both his constitutional right to be free from unreasonable searches and seizures and Nebraska statutory law. The court concluded, however, that because Knutson had no expectation of privacy in the records, the State's subpoenaing them did not violate Knutson's Fourth Amendment rights. And the court concluded that the State's use of subpoenas to obtain the records complied with state statutes. It overruled Knutson's motion to suppress.

3. Trial Testimony, Jury Verdicts, and Sentencing

Although the jury found Knutson guilty only of the charges involving E.A., it is necessary to summarize the testimony related to the other charges because it is relevant to the joinder issue. T.P. testified that Knutson would tell her she was pretty and beautiful, that he would ask her about her breasts and whether he could feel them, and that he later threatened to lower her grades if she did not show him her breasts. T.P. also testified about incidents when she participated on the football team and when she was a manager for the basketball team. Knutson coached both teams. T.P. testified that Knutson had asked her for oral...