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State v. Sanders5/27/2005
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
NATURE OF CASE
Following a jury trial in the district court for Lancaster County, Donald P. Sanders was convicted of first degree sexual assault and procuring alcohol for a minor. Sanders was sentenced to 5 years' probation on the sexual assault conviction and 90 days in jail and a $500 fine on the alcohol conviction. Prior to trial, Sanders challenged the jury selection process in Lancaster County. The court overruled Sanders' jury selection challenge. During the course of the proceedings, Sanders unsuccessfully raised issues relating to the admission of evidence. Following trial, Sanders filed a motion for new trial, which was denied. On appeal, Sanders challenges the correctness of the jury instructions and various rulings. We affirm.
STATEMENT OF FACTS
On September 12, 2002, the State filed an information charging Sanders with first degree sexual assault and procuring alcohol for a minor. The statute pertaining to procuring alcohol is found at Neb. Rev. Stat. § 53-180 (Reissue 2004), and the first degree sexual assault statute is found at Neb. Rev. Stat. § 28-319 (Reissue 1995). Section 28-319(1) provides as follows:
Any person who subjects another person to sexual penetration (a) without consent of the victim, or (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is less than sixteen years of age is guilty of sexual assault in the first degree.
The charges in this case grew out of an incident which occurred between Sanders and the alleged victim, J.F., on July 7, 2002. In the charge relating to first degree sexual assault, the State alleged in the information that Sanders did "subject [J.F.] to sexual penetration without the consent of the victim" or "knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct."
Prior to trial, Sanders filed a motion in limine requesting, inter alia, that the State be prohibited from offering evidence concerning "whether the alleged victim suffered any injuries as a result of the commission of the alleged offense, and any opinion that said injuries are inconsistent with a consensual sexual act." In particular, Sanders objected to expected testimony by Jill Ross, a nurse who had examined J.F. after the alleged assault. Following a hearing, the trial court denied Sanders' motion to the extent it requested that Ross "not be permitted to testify about observations she made of injuries to the alleged victim" but granted the motion to the extent it sought "to prevent . . . Ross from rendering any opinion about the cause or source of the injuries."
Also prior to trial, on April 7, 2003, Sanders filed a motion entitled "Motion for a Hearing on Whether § 25-1628 is Constitutional." Neb. Rev. Stat. § 25-1628 (Reissue 1995) generally provides for the manner in which jury lists are assembled from voter registration lists and motor vehicle operator lists. At the time this motion was filed, no trial date had been set and jury selection had not begun. Trial eventually began on January 20, 2004.
In the April 7, 2003, motion, Sanders requested "a hearing to determine whether the manner in which the composition of a jury venire is determined by Neb. Rev. Stat. § 25-1628 is constitutional." Sanders, who is African-American, generally claimed that African-Americans were underrepresented on juries. In the motion, Sanders referenced The Nebraska Minorit
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