State v. Loon

State of Nebraska, appellee, v. Davante L. Van Loon, appellant.

No. A-21-937

Court of Appeals of Nebraska

December 27, 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 Washington County: John E Samson, Judge.

Kenneth Jacobs, of Hug and Jacobs, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Pirtle, Chief Judge.

INTRODUCTION

Following a jury trial in the district court for Washington County, Davante L. Van Loon was found guilty on five counts of child abuse and sentenced to an aggregate of 18 to 44 years of incarceration. On appeal, Van Loon challenges the sufficiency of the evidence on each count and argues that the district court imposed an excessive sentence. Van Loon further raises, through new counsel, six claims of ineffective assistance of trial counsel. For the reasons that follow, we affirm.

BACKGROUND

The criminal charges in this case arose out of a child abuse investigation that began in the evening hours of March 26 2019. Shortly after 4 p.m. on that day, a home daycare provider, Morgan Lee, sent a text message to Rana M. notifying her of an apparent injury to one of Rana's children, whom we shall refer to as J.M. throughout this opinion. J.M. was roughly 7 months old at the time, and he was not yet able to walk or talk. Rana promptly picked her two children up from Lee's residence and transported J.M. to the emergency room. Rana recalled that J.M. appeared to be experiencing severe pain in his right arm, and it was later determined that J.M. suffered an "acute" and "displaced" bone fracture near his right elbow.

Due to suspicions of child abuse, J.M. was transferred to Children's Hospital in Omaha (Children's) for a higher level of care. Dr. Juan Juarez, a physician specializing in pediatric emergency medicine at Children's, testified that he assumed care of J.M. upon his transfer to Children's and conducted a comprehensive medical evaluation, which included an x ray of all the bones in J.M.'s body. Juarez's evaluation revealed a number of additional suspicious injuries not explained by J.M.'s medical history. In addition to the acute displaced right arm fracture, J.M. had also suffered an acute nondisplaced fracture to the upper portion of his left arm, a healing "spiral fracture" to his left leg, bruising to his genitals, and a torn frenulum, which is the connective tissue under the tongue. With the exception of the frenulum tear, none of these injuries had been previously reported.

Dr. Lincoln Wong, a pediatric radiologist involved in J.M.'s care at Children's, testified that "acute" means a new fracture that does not show any signs of healing, and "displaced" means that the bone fragments actually separated from one another. Wong further testified that an acute fracture is generally considered to have occurred within 10 days of discovery, as signs of healing normally appear between 10 and 14 days after injury. Accordingly, a "healing" fracture is generally considered to have occurred at least 10 to 14 days prior to discovery. Wong indicated that it is difficult to determine the precise age of a healing fracture, but he estimated that the healing fractures in this case probably occurred within 21 days of discovery.

With the exception of the frenulum tear, Rana and Lee both testified that J.M. showed no signs of injury and demonstrated no discomfort when he was dropped off on the morning of March 26, 2019. The tear to J.M.'s frenulum was first observed by Lee and brought to Rana's attention about a week prior on March 21, 2019. Rana recalled that Van Loon was present in the home when Lee reported the injury and it was not clear how the injury occurred. Rana did not seek medical attention, as she initially thought J.M. simply scratched himself. However, Dr. Suzanne Haney, a pediatric child abuse expert involved in J.M.'s care at Children's, opined that the frenulum injury was not an injury that J.M. could have reasonably inflicted upon himself. Haney explained that the injury occurs when a hard object is "forcibly shoved" into the child's mouth. Both Haney and Juarez opined that such an injury is indicative of child abuse.

With respect to the bruising to J.M.'s genitals, Rana recalled observing similar bruising a week or two prior to March 26, 2019. At that time, Rana thought the bruising was from J.M. jumping too much in a bouncer, so she postulated that the bruising discovered on March 26 could have similarly been caused by the bouncer. However, Haney opined that the bruising to J.M.'s genitals would have required a significant amount of force inconsistent with a self-inflicted injury from jumping in a bouncer. Haney further opined that it was "very unlikely" that another child could have inflicted the bruising.

With respect to the acute displaced fracture to J.M.'s right arm, Haney explained that "the amount of force required to cause this would have been so excessive that whoever did it would have known," yet no reasonable explanation for the injury was provided. J.M. ultimately required surgery to repair the injury and Haney opined that the injury could have caused permanent disfigurement without surgery. With respect to the acute fracture to J.M.'s left arm, Haney again noted the significant degree of force required to cause such an injury. However, unlike the displaced fracture to the right arm, Haney opined that the left arm would likely heal well without significant medical intervention. Finally, Haney testified that the spiral fracture to J.M.'s left leg would have been caused by taking ahold of the knee and twisting the ankle with significant force. Treatment of the spiral fracture required J.M.'s left leg to be immobilized in a hard cast for around a month. Altogether, given the number and nature of J.M.'s injuries, along with J.M.'s age and the lack of explanation as to the cause of the injuries, Juarez, Wong, and Haney all opined with a reasonable degree of medical certainty that J.M.'s injuries were not accidental and were inflicted as a result of abuse.

Rana testified that her children started going to Lee's for daycare on or about February 18, 2019. Prior to Lee's, Rana's children attended daycare in the home of Jennice Reid-Hansen beginning in early January 2019. Reid-Hansen testified that she never noticed any signs of injury or abuse during the roughly 1 month that J.M. attended daycare in her home. Reid-Hansen ceased providing daycare services to care for a new foster child with heightened needs. Lee's two children had also been attending daycare at Reid-Hansen's, so both Rana and Lee were in need of child care. Lee decided to open her own home daycare service, and Rana started sending her children to Lee's shortly thereafter.

Rana testified to her understanding that Van Loon would not be involved in the supervision of her children. Rana recalled sometimes seeing Van Loon at the home when she dropped off or picked up the children, but she assumed Van Loon was at work during the day. However, Lee testified that Van Loon had been off work due to bad weather for roughly 2 weeks leading up to March 26, 2019. While Lee testified that Van Loon often left the house even when he was off work, she also confirmed that Van Loon had repeated, and sometimes unsupervised, access to J.M. and the other children during that time. Moreover, Lee confirmed that Van Loon was home for a number of hours on March 26, 2019, and had substantial contact with J.M. on that day. Law enforcement conducted an interview with Van Loon in the early morning hours of March 27, which ultimately led law enforcement to suspect that Van Loon had inflicted J.M.'s injuries.

Van Loon's interview with law enforcement was video and audio recorded, which recording was admitted into evidence. Van Loon also provided a written statement which was likewise admitted into evidence. Law enforcement detective, Russ Cook, conducted the interview and testified at trial to his observations of Van Loon as it relates to the child abuse investigation. Cook noted that Van Loon had an "odd" reaction when Cook described the extent of J.M.'s injuries. "[Van Loon] placed his hand over his mouth and became silent for a very long period of time." Van Loon confirmed that he had contact with J.M. on March 26, 2019, and on prior occasions, including at least one occasion in which Van Loon tried to feed J.M. a bottle but J.M. refused to eat.

As far as possible explanations for J.M.'s injuries, Van Loon reported that on or about March 18, 2019, he lost his balance while climbing over a baby gate and fell on J.M., possibly injuring J.M.'s upper left leg and lower left arm. Van Loon further reported that on March 21, he was "play walking" with J.M., holding J.M. upright by his armpits, when Van Loon got distracted and lost his grip causing J.M. to fall to the floor. Haney testified that the March 18 incident could have possibly caused the fracture to J.M.'s upper left arm, but it would not explain the totality of J.M.'s injuries. Haney further opined that the March 21 incident as described by Van Loon would not have caused any of J.M.'s injuries.

At trial, there was no dispute that Van Loon was present in the home on the morning of March 26, 2019, after J.M. arrived. It was further undisputed that Van Loon left the home at some point in the day and returned between 4 and 5 p.m. In Van Loon's recorded interview, he first indicated that he had only a brief interaction with the children before leaving for Omaha around 9:30 a.m. to see a...