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In re Jamie P.11/10/2003
declaration lacked requisite degree of trustworthiness, and prejudicial nature of declaration outweighed minimum probative value); State v. Zimmerman, 121 Idaho 971, 829 P.2d 861 (1992) (testimony of sleep talk inadmissible; not relevant due to lack of probative value regarding actual events and inherent unreliability); State v. Presley, 108 Or. App. 149, 814 P.2d 550 (1991) (relevance of sleep talk not established because of failure to demonstrate nexus between child's vocalization and alleged incidents).
We conclude that under the circumstances surrounding the alleged statements made by Jamie while she was asleep, her statements, as testified to by Jessica, are not excited utterances admissible under § 27-803(1) and do not contain sufficient indicia of their reliability to be admissible under § 27-803(23). Further, we agree with the juvenile court's conclusion that even if the statements were relevant, their prejudicial nature outweighed their probative value. See § 27-403. The juvenile court did not err in excluding Jessica's testimony of these statements from evidence. Rhonda's assignment of error is without merit.
Sufficiency of Evidence
Finally, Rhonda asserts that the juvenile court erred in failing to find that there was sufficient evidence that Alan had inappropriately touched Jamie. Rhonda acknowledges that while an appellate court is required to reach a conclusion independent of the juvenile court's findings, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Michael R., 11 Neb. App. 903, 662 N.W.2d 632 (2003). Rhonda argues generally that the record in this case is sufficient to establish that Alan inappropriately touched Jamie "as far as the State's case is concerned." Brief for appellant at 16. Rhonda specifically argues that because the juvenile court did not hear testimony from or have the opportunity to observe Rhonda's own witnesses and did not hear her evidence supporting both the State's and her own allegations, the record was incomplete and the trial fatally flawed. We have already concluded that Rhonda's due process rights were not violated when the juvenile court did not allow her to proceed with her intervenor's petition and affirmative allegations against Alan. As to the allegations against Alan in the State's petition, there was conflicting evidence presented. The juvenile court had the opportunity to hear the evidence and observe the witnesses presented by the State and by Alan and clearly accepted a version of the facts favorable to Alan. Rhonda had every opportunity to cross-examine these witnesses on the allegations raised in the State's petition. Our de novo review of the record leads us to conclude that the juvenile court did not abuse its discretion in dismissing the State's petition. Rhonda's final assignment of error is without merit.
CONCLUSION
We conclude that Rhonda was not denied her procedural due process rights with respect to the adjudication proceedings by virtue of the juvenile court's decision not to allow Rhonda to proceed on her intervenor's petition and affirmative allegations. We further conclude that the juvenile court did not err in excluding testimony of the statements allegedly made by Jamie while sleeping from evidence. Finally, we conclude that the juvenile court did not abuse its discretion in dismissing the State's petition.
Affirmed.
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