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State v. Sanders5/27/2005
area. Prior to trial, Sanders filed a motion in limine in which he sought to prevent the State from offering evidence regarding, inter alia, "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." Sanders asserted that Ross, whose testimony the State intended to offer, lacked sufficient qualification to render an opinion, and in addition, that such evidence was not relevant. The court granted Sanders' motion in limine to the extent it sought "to prevent . . . Ross from rendering any opinion about the cause or source of the injuries." The court denied the motion in limine to the extent it requested that Ross "not be permitted to testify about observations she made of injuries to the alleged victim."
During Ross' testimony at trial, Sanders made certain objections which the court sustained based on its previous order on the motion in limine. The court overruled other objections and allowed Ross to testify regarding her observations of injuries to J.F.'s vaginal area. Ross did not opine regarding the cause of J.F.'s injuries.
Sanders argues on appeal that none of Ross' testimony regarding injuries to J.F. should have been allowed. He argues that the only relevant purpose for such testimony was to establish the element of penetration and that because he admitted in a pretrial statement that penetration had occurred, there was no reason to introduce such evidence and that the evidence served only to inflame the jury. We do not agree.
The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Rev. Stat. § 27-401 (Reissue 1995) and prejudice under Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court's decision regarding them will not be reversed absent an abuse of discretion. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). We determine that the court did not abuse its discretion in admitting Ross' testimony.
A review of the record shows that Ross' observations regarding the injuries to J.F.'s vaginal area were relevant to the issue of whether penetration had occurred. Because Sanders' pretrial statements were indefinite as to whether penetration had occurred, when the State presented its case, it could not be certain whether Sanders would testify or, if he testified, whether Sanders would admit to penetration. The State needed to prove penetration as an element of first degree sexual assault, and Ross' testimony was relevant to that issue. Further, Ross' observations were conveyed in a professional manner without opinion and cannot be said to have been prejudicial as understood under § 27-403. We conclude that the court did not abuse its discretion in determining that Ross' testimony was relevant and allowing its admission.
Instruction Regarding "Without Consent."
Sanders asserts that the district court erred in instructing the jury that it could consider whether Sanders subjected J.F. to sexual penetration "without consent." Sanders claims there was insufficient evidence to support this instruction. We conclude that there was sufficient evidence to support the instruction and that the court did not err in giving the instruction.
In instruction No. 4, the court instructed the jury on the elements of first degree sexual assault as follows:
Regarding the crime of First Degree Sexual Assault, the State must prove beyond a reasonable doubt that . . . Sanders:
1. subjected [J.F.] to sexual penetration; and
2. did so on or about July 7, 2002, in Lancaster County, Nebraska; and
3. did so either:
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