State v. Schmidt

STATE OF NEBRASKA, APPELLEE, v. ROGER K. SCHMIDT, APPELLANT.

No. A-11-981

NEBRASKA COURT OF APPEALS

Filed: March 19, 2013

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 Jefferson County: PAUL W. KORSLUND, Judge. Affirmed.

Lyle J. Koenig, of Koenig Law Firm, for appellant.

Jon Binning, Attorney General, and Erin E. Tangeman for appellee.

IRWIN, MOORE, and PIRTLE, Judges.

MOORE, Judge.

INTRODUCTION

Roger K. Schmidt appeals from the order of the district court for Jefferson County which denied his motions for postconviction relief without an evidentiary hearing. Because the records and files in this case affirmatively show that Schmidt is entitled to no relief, we find no error in the denial of his postconviction motions without an evidentiary hearing. We affirm.

BACKGROUND

Charges and Trial.

On May 16, 2006, the State filed an information charging Schmidt with two counts of first degree sexual assault on a child in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 1995), a Class II felony, and five counts of sexual assault of a child in violation of Neb. Rev. Stat. § 28-320.01 (Cum. Supp. 2004), a Class IIIA felony. The State identified M.C., K.S., and R.S. as the victims of the alleged crimes.

A jury trial was held March 12 through 14, 2007. The evidence showed that M.C., born in July 1996, had lived in Fairbury, Nebraska, with her mother, her siblings, and her mother's live-in boyfriend. M.C.'s mother's boyfriend, who is Schmidt's son, had been part of the household for close to 9 years at the time of trial. Although he is not M.C.'s biological father, she referred to her mother's boyfriend as "dad." She viewed Schmidt, born in February 1944, as her grandfather and Schmidt's wife as her grandmother. M.C. spent a significant amount of time at Schmidt's house and would often spend the night there on weekends. Schmidt and M.C. did a lot of things together and would often go fishing at Crystal Springs Park (Crystal Springs), which is located in Jefferson County, Nebraska.

M.C.'s testimony shows that Schmidt sexually assaulted her over a 3-year period that ended when she reported Schmidt's actions to her teacher and school counselor in April 2006. Specifically, M.C. testified that one of the assaults occurred 2 or 3 years prior to trial when she was fishing alone with Schmidt at Crystal Springs. According to M.C., she was sitting down when Schmidt, who was on his knees, reached over her to grab a worm. After he grabbed the worm, Schmidt placed his hand in M.C.'s lap outside of her clothing and began rubbing her crotch area. Schmidt continued rubbing for a few seconds until M.C. pulled his hand away and told him that she wanted to leave. Schmidt also tried to stick his hand down the top of M.C.'s shirt and rub her breasts, but she was able to stop him.

On another fishing trip alone with Schmidt at Crystal Springs 3 or 4 years prior to trial, Schmidt attempted to kiss M.C. on the lips, put his tongue in her mouth, and touch her breasts. M.C. pushed Schmidt away when he tried to put his tongue in her mouth. He was able to touch the top part of her breasts before she pushed him away. M.C. also recalled an occasion approximately 2 to 3 years prior to trial when Schmidt rubbed her crotch on top of her clothes with his hand. This occurred at a stream located between the lakes at Crystal Springs. M.C. pushed Schmidt off of her and ran over to another stream where her friend and the friend's parents were.

M.C. also testified about various occasions during which Schmidt touched her while she was alone with him at his house in Fairbury. Schmidt's actions on these occasions included rubbing M.C.'s breasts underneath her clothing with his hands, rubbing her crotch on top of her clothing with his hands, rubbing her crotch underneath her clothing with his hands and his penis, and sticking his tongue inside of her mouth. On one occasion, approximately 3 to 4 years prior to trial, M.C. was napping in Schmidt's bedroom when he crawled into bed with her, put his hand underneath her clothing, and penetrated her with his finger. Schmidt stopped when M.C. said, "Ow."

On April 25, 2006, M.C. filled out a pink "Band-Aid Form" at her school, advising the school counselor that she had a secret that worried or scared her and that someone had been touching her "in a bad place." M.C. filled out the form after she attended a "Good-Touch Bad-Touch" program at the school. The school counselor talked to M.C. after receiving the form. The counselor then telephoned the State abuse hotline number, which led to a subsequent police investigation.

At trial, M.C. explained that she had not reported Schmidt's actions sooner because Schmidt had scared and threatened her 3 years earlier when she first told Schmidt's wife that Schmidt always wanted to play the game "Hide the Weenie." Schmidt responded to M.C.'stelling his wife by getting mad and telling M.C. that it would be her and K.S.' fault if he ever went to jail and that he would try to get his hands on her when he got out of jail.

R.S. and K.S., sisters who live with their parents across the street from Schmidt, testified about their encounters with Schmidt. R.S. was born in April 2001, and K.S. was born in January 1998. Their father testified that on March 21, 2006, when R.S. came home from Schmidt's house, she was upset and told him that Schmidt had touched her in her private parts. R.S. testified that Schmidt had placed his hand on her lower private part, which she described as the area between her legs, and that Schmidt then moved his hand around for a little bit. This incident occurred in Schmidt's home when R.S. was sitting on his lap.

K.S. testified that Schmidt had done something "bad" to her "a lot of times" while she was at his house. Specifically, K.S. testified that on several occasions, Schmidt used his hand to rub her private part, which K.S. described as the area between her legs. Schmidt also touched K.S. on top of her clothes. He began doing these things to K.S. when she was approximately 4 years old. K.S. and M.C. often played together when M.C. was at Schmidt's house, and when K.S. was 8 years old, she told M.C. that Schmidt "had been touching [her] private part." K.S. testified that she did not tell anyone about Schmidt's actions sooner because she was afraid.

Sgt. Douglas Klaumann of the Fairbury Police Department interviewed Schmidt on April 27, 2006. After waiving his Miranda rights, Schmidt consented to being interviewed and eventually admitted to touching M.C.'s vaginal area at least six or seven times. Schmidt then blamed M.C. for his actions by alleging that she would take his hand and put it on her vaginal area. Schmidt admitted that the touching occurred at both his home and at Crystal Springs. Schmidt also made unsolicited comments to Klaumann during the interview such as, "I didn't know I did that," and, "If I did, I don't remember." When asked about R.S., Schmidt told Klaumann that he did not do anything to her because she was "a mama's girl and she would go home and tell her mother everything that took place."

The State presented testimony at trial from a licensed mental health practitioner, who testified about the difficulties young children who have been sexually abused have in disclosing that abuse.

The only defense witness at trial was Schmidt's wife, whose testimony concerned the improbability of the sexual assault allegations due to various circumstances and the nature of the relationships Schmidt and his wife had with the victims.

Convictions and Sentencing.

The jury found Schmidt guilty of one count of first degree sexual assault on a child and four counts of sexual assault of a child and not guilty of the remaining two counts, both of which involved K.S.

On May 18, 2007, the district court entered an order sentencing Schmidt to imprisonment for a period of 18 to 25 years for first degree sexual assault on a child and for a period of 5 to 5 years on each conviction for sexual assault of a child. The court ordered Schmidt's sentences to run consecutively.

Direct Appeal.

Schmidt filed a direct appeal of his convictions and sentences. See State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008) (Schmidt I). Schmidt was represented on direct appealby his trial counsel. Schmidt argued that the district court erred in (1) sustaining a motion in limine filed by the State that requested an order prohibiting defense counsel from commenting upon or cross-examining M.C. and K.S. regarding prior allegations of sexual assault directed at persons other than Schmidt; (2) sustaining the State's objection to cross-examination of M.C. regarding her reported observation of Schmidt touching the vaginal area of another minor, T.B.; (3) instructing the jury that the testimony of a person who is the victim of a sexual assault does not require corroboration; and (4) admitting Schmidt's statements to Klaumann. This court affirmed Schmidt's convictions and sentences, finding no merit to his alleged errors.

Schmidt filed a petition for further review, which was granted by the Nebraska Supreme Court. See State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008) (Schmidt II). To the Supreme Court, Schmidt argued that this court erred in affirming his convictions because (1) the jury instruction regarding corroboration was confusing, misleading, and prejudicial to his defense; (2) the district court denied his right to confront and cross-examine M.C. to demonstrate bias, prejudice, and lack of credibility; and (3) the trial court denied his right to compulsory process and impaired his right to effective cross-examination of M.C. and K.S. by granting the State's motion in limine. The Supreme Court found no merit to Schmidt's claims and affirmed the judgment of this court. We have set forth further details of the previous...