State v. Matchett

STATE OF NEBRASKA, APPELLEE,

v.ROBERT B. MATCHETT, APPELLANT.

No. A-10-737.

NEBRASKA COURT OF APPEALS

Filed October 11, 2011.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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 District Court for Colfax County: Mary C. Gilbride, Judge. Affirmed.

Thomas J. Klein and Darren L. Hartman, of Haessler, Sullivan, Klein, Ltd., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

IRWIN, SIEVERS, and MOORE, Judges.

SIEVERS, Judge.

Robert B. Matchett appeals from the decision of the district court for Colfax County that, after a jury trial, convicted him of two counts of first degree sexual assault and one count of third degree sexual assault of a child. Matchett was sentenced to 20 to 40 years' imprisonment for each count of first degree sexual assault, and 5 years' imprisonment for third degree sexual assault of a child. All sentences were ordered to be served concurrently. We affirm.

FACTUAL BACKGROUND

Matchett is the stepfather of three girls: L.M., born in November 1990; S.H., born in August 1992; and C.H., born in September 1993. Matchett sexually abused the three girls repeatedly and over a number of years. The abuse of each girl started when she was approximately 5 years old and ended sometime in the spring of 2006. The sexual abuse of L.M. and C.H. involved penetration, while the sexual abuse of S.H. involved sexual contact, but not penetration. Kimberly Matchett is the mother of L.M., S.H., and C.H. Additional facts will be set forth as necessary later in our opinion.

PROCEDURAL BACKGROUND

On June 21, 2007, the State initially charged Matchett with five counts of first degree sexual assault, each a Class II felony. Two counts named L.M. as the victim, two counts named S.H. as the victim, and one count named C.H. as the victim.

In its amended information filed on July 17, 2007, the State charged Matchett with three counts of first degree sexual assault, each a Class II felony. Count I named L.M. as the victim, count II named S.H. as the victim, and count III named C.H. as the victim.

On May 21, 2008, Matchett filed a motion to sever and requested that the court order a separate trial on each count.

In its second amended information filed on September 24, 2008, the State charged Matchett with two counts of first degree sexual assault, each a Class II felony, and one count of third degree sexual assault of a child, a Class IIIA felony. L.M. and C.H. were named as the victims in the counts for first degree sexual assault, and S.H. was named as the victim in the count for the third degree sexual assault of a child.

On September 25, 2008, the State filed a motion for a hearing pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008). The State moved the court for a hearing to adduce evidence and permit said testimony at trial to include Matchett's preparation, plan, scheme, knowledge, and absence of mistake or accident: to-wit, incidents involving sexual contact with L.M., S.H., and C.H. by Matchett, occurring on or between January 1995 and May 2006.

In a journal entry filed on October 8, 2008, the district court noted that a hearing was held on the motion to sever and the rule 404 motion. Evidence was adduced on the motion to sever and the rule 404 motion with regard to counts I and III. The court continued the hearing on the rule 404 motion with regard to count II to October 22. The district court also granted the State leave to amend its rule 404 motion.

In its amended motion for a rule 404 hearing, filed on October 14, 2008, the State moved the court for a hearing

to adduce evidence and permit said testimony at trial to include [Matchett's] intent, preparation, plan, scheme, knowledge and absence of mistake or accident, to wit incidents involving sexual contact with [L.M., S.H., and C.H.] by their step-father, . . . Matchett occurring on or between January 1995 and May 2006.

The hearing on Matchett's motion to sever and the rule 404 motion was continued on October 22, 2008. In its order filed on January 28, 2009, the district court found that the counts were appropriately joined and denied Matchett's motion to sever. The district court also ruled as follows regarding the rule 404 evidence:

The court has reviewed the testimony presented in this matter. The court does not enter any order precluding the offer of any of the evidence adduced at the hearing on the basis that it is irrelevant under Neb. Rev. Stat. § 27-404. The parties are reminded of their obligation at trial under State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) with respect to objections, stated purposes and ensuring that the court gives appropriate limiting instructions if necessary.

This order by the district court mentions a "motion for disclosure of rule 404(2) evidence" filed by Matchett on May 21, 2008, but that motion is not in our transcript. The district court's orderalso denies Matchett's motion to quash but states that "this ruling is not a bar to a motion for a bill of particulars."

On February 11, 2009, Matchett filed a "motion for bill of particulars," asking the court to require the prosecution to state with "precision and specificity" the dates upon which L.M., S.H., and C.H. were allegedly sexually assaulted by Matchett.

In its third amended information, the State ultimately charged Matchett with two counts of first degree sexual assault, each a Class II felony, and one count of third degree sexual assault of a child, a Class IIIA felony. The counts were as follows:

[Count I]

. . . Matchett, on or between January 1995 and May 2006, in Colfax County, Nebraska, did subject another person to sexual penetration to wit: [L.M.], without her consent or when [Matchett] knew or should have known that she was mentally or physically incapable of resisting or appraising the nature of [Matchett's] conduct or when she was less than sixteen years of age and when [Matchett] was nineteen years of age or older . . . .

Count II

. . . Matchett, on or between July 1998 and May 2006, in Colfax County, Nebraska, did subject another person being fourteen years of age or younger to sexual contact to wit: [S.H.], when [Matchett] was nineteen years of age or older and did not cause serious personal injury to the victim . . . .

Count III

. . . Matchett, on or between January 1998 and May 2006, in Colfax County, Nebraska, did subject another person to sexual penetration to wit: [C.H.], without her consent or when [Matchett] knew or should have known that she was mentally or physically incapable of resisting or appraising the nature of [Matchett's] conduct or when she was less than sixteen years of age and when [Matchett] was nineteen years of age or older . . . .

In a journal entry filed on April 6, 2009, the district court overruled Matchett's motion for a bill of particulars, stating:

In this case, which has been on file for 18 months, [Matchett] has had substantial opportunity to conduct and has conducted, substantial discovery. At the hearing on the Rule 404 Motion and the Motion to Sever, the State adduced significant testimony from the victims. The victims have been the subject of deposition. The State has been required to turn over materials related to the charges and the State has voluntarily agreed to turn over materials. There does not appear to be anything which [Matchett] could glean from a more particular statement, nor does there appear to be any information within the possession of the State which it has not divulged. The Motion is overruled.

(Emphasis in original.)

In its order filed on April 30, 2009, at the conclusion of Matchett's first jury trial, the district court declared a mistrial after finding that the jury was hopelessly deadlocked and unable to reach a verdict.

Matchett's second jury trial was held January 2010. The jury found Matchett guilty of two counts of first degree sexual assault and one count of third degree sexual assault of a child. Matchett was sentenced as previously outlined and given credit for 233 days of time served. Matchett now appeals.

ASSIGNMENTS OF ERROR

Matchett alleges that the district court erred in (1) admitting evidence of other wrongs, crimes, or acts without making the factual findings required by rule 404(3); (2) overruling Matchett's motion to sever; (3) overruling Matchett's motion for a mistrial; (4) overruling Matchett's motion for a bill of particulars because the timeframes alleged in the State's third amended information were not sufficiently distinct; and (5) imposing excessive sentences. Matchett also alleges that his trial counsel was ineffective because counsel (1) failed to request a corrective order respecting the district court's defective ruling under rule 404, (2) failed to request a limiting instruction for Kimberly's testimony, (3) failed to object to Kimberly's "spider" testimony on the basis that said testimony was not offered at the rule 404 hearing, and (4) for other reasons that may not be subject to review on direct appeal.

STANDARD OF REvIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id.

It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), and rule 404(2), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Baker, supra.

Severance is not a matter of right, and a ruling of the trial court with regard...