Opinion
No. A-10-737.
10-11-2011
STATE OF NEBRASKA, APPELLEE, v. ROBERT B. MATCHETT, APPELLANT.
Thomas J. Klein and Darren L. Hartman, of Haessler, Sullivan, Klein, Ltd., for appellant. Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
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 order also 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 thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
The decision whether to grant a motion for mistrial will not be disturbed on appeal in the absence of an abuse of discretion. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of deficiency of counsel's performance and whether there was resulting prejudice to the defendant is part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). And, an appellate court reviews these legal determinations independently of the lower court's decision. State v. Sellers, supra.
ANALYSIS
"Other Acts" Evidence and Rule 404(3) Factual Findings.
Matchett assigns that the district court admitted evidence of other wrongs, crimes, or acts without making the factual findings required by rule 404(3). We emphasize that Matchett does not specifically assign error to the admissibility of the rule 404 evidence, only the failure of the court to make findings, and he argues that the district court failed to specifically find by clear and convincing evidence that Matchett committed the other bad acts as required by rule 404(3). Matchett argues that the trial court failed to perform the balancing test required by rule 403 and failed to give insufficient limiting instructions to the jury, but, these alleged errors are not properly assigned.
The admissibility of what has been characterized as "other crimes" or "similar acts" evidence is governed by rule 404(2), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.Before the prosecution may offer other crimes evidence pursuant to rule 404(2) in a criminal case, it must first prove to the trial court, out of the presence of the jury, "by clear and convincing evidence that the accused committed the crime, wrong, or act." Rule 404(3). Only relevant evidence is admissible, and rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999). See, also, State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). As stated in Sanchez:
"[T]his court's rule 404(2) analysis considers whether the (1) evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted."257 Neb. at 306, 597 N.W.2d at 373, quoting State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).
Matchett's assignment of error does not relate to admissibility of evidence pursuant to rule 404(2). Rather, Matchett specifically references rule 404(3), which states:
When such evidence is admissible pursuant to this section, in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act. Such proof shall first be made outside the presence of any jury.Having read Matchett's assignment of error and related argument in its entirety, we note that his argument regarding the district court's failure to make the factual findings required by rule 404(3) stems solely from the rule 404 hearing held in October 2008 and the district court's resulting January 2009 order--all of which occurred before Matchett's first trial, which notably ended in a mistrial due to a hung jury. However, the rule 404 issues were again addressed at Matchett's second trial in January 2010, where an agreement was made between the State and Matchett's counsel that all previous motions and rulings still applied at the second trial, although we note that the trial court's original rule 404 order was "supplemented" during the course of the second trial by a more specific ruling that complies with State v. Sanchez, supra, as discussed below.
At the second trial, Matchett's counsel objected to the admissibility of the rule 404 "other acts" evidence to be testified to by each of Matchett's stepdaughters. In State v. Sanchez, 257 Neb. at 308, 597 N.W.2d at 374, the Nebraska Supreme Court held:
[T]he proponent of evidence offered pursuant to rule 404(2) shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered and that the trial court shall similarly state the purpose or purposes for which such evidence is received. . . . Any limiting instruction given upon receipt of such evidence should likewise identify only those specific purposes for which the evidence was received.(Citation omitted.) In the course of the second trial, upon objection by Matchett, the State did state on the record the specific purpose or purposes for which the evidence was being offered, and the trial court similarly stated the purpose or purposes for which such evidence was received--and the district court did so both prior to the testimony of each witness and during the final jury instructions. Accordingly, the district court did all that was required under State v. Sanchez, supra, and any shortcomings in its rule 404 order entered prior to the first trial are not material, given that a mistrial was declared and the requirements of Sanchez were fulfilled during the second trial.
The district court overruled Matchett's objection to the rule 404 evidence. An overruling of a rule 404 objection, by definition, constitutes an implicit finding by the trial court that it found that Matchett committed the "other acts" by clear and convincing evidence. And Matchett cites us to no authority holding that the district court must expressly state, "I find by clear and convincing evidence that the defendant committed the other acts." By overruling Matchett's rule 404 objection, the district court made the requisite findings under rule 404(3), given that the court made an express finding of the purpose for which the evidence would be received. Therefore, this assignment of error is without merit.
Matchett also argues that the district court failed to perform the balancing test required by rule 403. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Although Matchett argues that the balancing test was not performed, he did not specifically assign error to such--his assignment of error specifically referenced rule 404(3), not rule 403. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). Regardless of that deficiency, we note that a district court's overruling of a rule 404 objection and its subsequent receipt of the evidence at trial by definition means that the trial court found that the evidence was more probative than prejudicial--in other words, when a trial court overrules a rule 404 objection, it implicitly finds that the evidence is more probative than prejudicial, and the court need not utter those "magic words."
Matchett also argues that the court's limiting instructions during the second trial were insufficient. However, despite the fact that Matchett makes an argument that the limiting instructions were insufficient, he did not specifically assign error to the limiting instructions. Because Matchett makes no specific assignment with respect to the district court's limiting instructions, we need not address it. State v. McGhee, supra. And we find no plain error in the instructions. See Krumwiede v. Krumwiede, 258 Neb. 785, 606 N.W.2d 778 (2000) (appellate court may, at its option, notice plain error).
Motion to Sever.
Matchett claims that the district court erred when it overruled his motion to sever the three charges for purposes of trial. We conclude that the charges were properly joined and that the court did not err when it overruled the motion to sever.
Offenses may be joined pursuant to Neb. Rev. Stat. § 29-2002 (Reissue 2008), which provides:
(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.We employ a two-stage analysis in which it is determined first, whether the offenses are related and properly joinable under § 29-2002, and second, whether an otherwise proper joinder was prejudicial to the defendant. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
(3) If it appears that a defendant . . . would be prejudiced by a joinder of offenses . . . the court may order an election for separate trials of counts . . . or provide whatever other relief justice requires.
Offenses are properly joinable under § 29-2002 if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." All three charges against Matchett involved the sexual abuse of his three stepdaughters during the same or similar timeframe. All three girls testified that the sexual abuse started when they were 5 or 6 years old. Furthermore, in testimony and evidence at the hearing on Matchett's motion to sever, the stepdaughters revealed the distinctive manner in which Matchett would abuse them—for example, L.M. and C.H. said that Matchett's request for a soda pop was a precursor to sexual abuse, and L.M. and S.H. both said that Matchett had them try on their mother's clothes and that he then would become inappropriate. All three girls testified that when Matchett abused them, he said if they told anyone, they would be breaking up the family. Therefore, we determine that the two first degree sexual assault charges and the third degree sexual assault of a child charge are sufficiently related for purposes of joinder.
Matchett claims that separate trials were required because joinder of the charges was prejudicial to him. Matchett references his argument under his first assignment of error and argues that the district court erred by not severing the three counts because it never found by clear and convincing evidence that Matchett committed the other bad acts, it never found that the evidence in one count of the information had independent relevance with respect to the other counts, and it never performed the balancing test pursuant to rule 403. Thus, Matchett's previous assignment of error and related arguments, which we have already found wanting, become the sole basis for Matchett's claim that he was prejudiced by the district court's denial of his motion to sever. We have determined that the district court made the requisite factual findings and performed the balancing test under rules 403 and 404. Therefore, Matchett's argument that the district court caused him prejudice within the context of a motion to sever by failing to make the requisite findings is without merit.
Motion for Bill of Particulars.
Matchett assigns that the district court erred in overruling his motion for a bill of particulars because the timeframes alleged in the State's third amended information were not sufficiently distinct.
Following the district court's denial of Matchett's motions to quash, Matchett filed a motion for "Bill of Particulars" seeking to compel the State to set forth with "more precision and specificity" the date on which the alleged events occurred. The State's third amended information alleges a timeframe "between January 1995 and May 2006" for count I, "between July 1998 and May 2006" for count II, and "between January 1998 and May 2006" for count III.
In his brief, Matchett argues that the timeframes alleged in the State's third amended information were not sufficiently distinct because the timeframes allege only a timeframe starting and ending with a specified month and a year, rather than beginning and ending with a specific date, month, and year. Thus, rather than "between January 1995 and May 2006," as the State alleged, he seems to assert that the allegations should be more akin to, for example, "between January 17, 1995, and May 24, 1996." Although the proceedings from the hearing on the motion for a bill of particulars do not appear in our record, at least from the trial court's ruling this does not appear to be the same argument Matchett made to the lower court, which apparently was that the alleged timeframe for the crimes was too expansive.
In his motion for a bill of particulars, Matchett sought to compel the State to set forth with "more precision and specificity" the date on which the alleged events occurred. He goes on to say that the information "does not specifically inform him of the nature of the charges against him" and will "necessarily cause and maximize the element of surprise" making it "virtually impossible" to prepare an adequate defense. In its journal entry denying Matchett's motion for a bill of particulars, the district court stated:
[Matchett's] primary argument is that it is fundamentally unfair to [him] to be required to defend himself in a situation in which the State has the burden of proving only one sexual assault over a 10 year period yet [he] must be in a position to rebut the allegations as to each and every action over the protracted time span.Thus, to the extent that Matchett's argument is that the timeframes were insufficient because the beginning and ending of the range contained a month and a year, but not a specific date, we disregard the issue, because such was not raised to and addressed by the district court. See State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010) (in absence of plain error, when issue is raised for first time in appellate court, issue will be disregarded inasmuch as trial court cannot commit error regarding issue never presented and submitted for disposition in trial court). If his argument--that a particular day for each month and year should have been alleged--was addressed at the bill of particulars hearing, it was Matchett's duty to provide us with a sufficient record, i.e., the bill of exceptions from the hearing, to review the issue. See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006) (it is incumbent upon appellant to supply record which supports his or her appeal).
For the sake of completeness and to the extent that Matchett's argument on appeal is that the multiyear timeframe was not sufficiently distinct, we continue with our analysis. In State v. Martinez, 250 Neb. 597, 600, 550 N.W.2d 655, 658 (1996), the Nebraska Supreme Court noted the problems endemic to child sexual assault cases:
Because sexual assaults on minors are typically unwitnessed, and because such assaults can leave little or no physical evidence, a prosecutor is often resigned to basing the State's case on the testimony of the minor victim. Yet, young victims are often unsure of the date on which the assault or assaults occurred. A child who has been assaulted repeatedly may have no meaningful reference point of time or detail by which to distinguish one specific act from another. This is particularly true when a child has been assaulted on a regular basis and in a consistent manner. The more frequent and repetitive the assaults and the younger the victim, the more this problem is exacerbated, and the prosecutor's ability to prove specific acts through the victim's testimony decreases accordingly.Therefore, the Nebraska Supreme Court held that "where an information provides a timeframe which has a distinct beginning and an equally clear end within which the crimes are alleged to have been committed, it is sufficient to satisfy the requirements of the Sixth Amendment." Id. at 599, 550 N.W.2d at 657. "[T]o hold otherwise would impose an impossible burden on a child sexual assault victim where there are allegations of multiple assaults over a lengthy timeframe." Id. See, also, State v. Barnes, 149 Ohio Misc. 2d 1, 896 N.E.3d 1033 (2008). In the instant case, the timeframe for each count did have a distinct beginning and an equally clear ending, because there was a month and year provided for each, e.g., "between January 1995 and May 2006." Count I, in which L.M. was the victim, had the longest alleged timeframe of 11½ years--a timeframe that has been held to be sufficient in child sexual assault cases. See State v. Barnes, supra, citing State v. Hensley, 59 Ohio St. 3d 136, 571 N.E.2d 711 (1991) (13-year timeframe sufficient when dealing with victim of tender years).
The court in Martinez held that the protections for the accused come in the context of double jeopardy.
The State may allege a timeframe for its allegations of sexual assault of a child in its first prosecution; as a quid pro quo to ensure that this liberty is not abused, the State must survive double jeopardy scrutiny if it attempts a second prosecution based upon the250 Neb. at 601, 550 N.W.2d at 658. Thus, in the instant case, the State was allowed to allege a rather expansive timeframe for the allegations against Matchett. But, in doing so, it is prevented from further prosecuting Matchett for the same crime occurring during the same timeframe as alleged in the second amended information with respect to each child. Thus, for example, even if Matchett committed multiple acts of first degree sexual assault against L.M. during the alleged timeframe, the State has limited itself to a conviction for only one act. We hold that the time periods in the information here were sufficiently definite to provide adequate notice of the charges and to protect Matchett from subsequent prosecution for the same offenses during the time periods charged in the information. Therefore, this assignment of error is without merit.
same transaction during the same timeframe. Unless the offense charged in the second prosecution is clearly separate and apart from the offense charged in the first prosecution, the timeframe alleged in the first prosecution acts as a "blanket bar" for subsequent prosecutions. This is the only viable means of balancing the profound tension between the constitutional rights of one accused of child molestation against the State's interest in protecting those victims who need the most protection.
Motion for Mistrial.
Matchett assigns error to the district court decision to overrule his motion for a mistrial during L.M.'s testimony and again at the conclusion of the evidence. Matchett again refers us to his argument under his first assignment of error that the district court did not make findings pursuant to rules 403 and 404(3). Matchett argues that "[b]ecause the District Court did not make proper evidentiary findings under Rules 404 and 403, the District Court committed an abuse of discretion when it denied [his] motions for a mistrial." Brief for appellant at 36. We have already found that the district court did make the requisite findings pursuant to rules 403 and 404(3). Therefore, the district court did not abuse its discretion in denying Matchett's motion for a mistrial on the basis alleged.
Excessive Sentences.
Matchett argues that the district court erred in imposing excessive sentences. Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004). Matchett was between 19 and 30 years old during the timeframe of the crimes and he was 35 at the time of sentencing. He had completed the 12th grade. He has no prior criminal record. All of this information, as well as other information regarding Matchett's personal life, is in the presentence investigation report which the district court reviewed and considered. At the sentencing hearing, the court noted that "these crimes are very serious; and I do not believe that [Matchett] is, in light of the seriousness of the crimes, a candidate for probation."
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). Matchett was convicted of 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. Class II felonies are punishable by 1 to 50 years' imprisonment. Class IIIA felonies are punishable by up to 5 years' imprisonment, a $10,000 fine, or both. Matchett was sentenced to 20 to 40 years' imprisonment for each count of first degree sexual assault and 5 years' imprisonment for the third degree sexual assault of a child. All sentences were ordered to be served concurrent. Matchett's sentences are not excessive and are therefore affirmed.
Effectiveness of Counsel.
Matchett argues that he was denied his right to effective assistance of counsel 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.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). If it is more appropriate to dispose of an ineffectiveness claim because of the lack of sufficient prejudice, that course should be followed. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004). Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. Id.
We note that throughout this case, Matchett has had three different lawyers. His first lawyer represented him from the time the original information was filed through the end of the first trial. Matchett's second lawyer represented him beginning less than 1½ months after his first trial ended in mistrial through sentencing. Matchett's third lawyer is representing him on appeal.
Rule 404 Evidence and Order.
Matchett argues that his first lawyer was ineffective for not requesting that the district court correct its "patently deficient" January 2009 ruling on the State's offer of rule 404 evidence—and Matchett cites us to his previous assignment and argument regarding such evidence and order. Matchett also argues that his lawyer at the second trial "seemed somewhat" aware of the problem with the district court's handling of the rule 404 evidence, but "did not take the further step of requesting that the District Court make the requisite evidentiary finding under Rule 404(3)." Brief for appellant at 30.
Matchett cannot show prejudice due to any alleged deficiencies by his first lawyer because Matchett's first trial ended in a mistrial, and his second lawyer would have had an opportunity to raise any rule 404 issues again during the course of the second trial. There appears on the record at the second trial an agreement between the State and Matchett's counsel that all previous motions and rulings still applied at the second trial.
However, Matchett cannot show that his second lawyer was deficient for failing to request that the district court make the requisite evidentiary findings under rule 404(3). As stated previously in our discussion of such issue, the district court did make the requisite rule 404(3) evidentiary finding--albeit implicitly by the fact of its admission of the evidence—that the other acts occurred by clear and convincing evidence. Because the district court made the requisite findings, there is simply no basis to find that Matchett's counsel was deficient in this manner.
Kimberly's Testimony.
Matchett argues that his lawyer at the second trial failed to request a limiting instruction with respect to Kimberly's testimony, "even though Kimberly testified to two bad acts, viz., the May 2006 discovery of [Matchett] and [L.M.] in [Matchett's] bedroom, and [Matchett's] caressing [L.M.'s] breast but claiming that he was removing a spider." Brief for appellant at 30. Matchett claims that in both instances, L.M. was the alleged victim, but that since neither entailed penetration (which was the allegation of count I in which L.M. was the victim), they were other bad acts subject to rule 404, and thus counsel should have requested a limiting instruction as to the proper purpose of such testimony.
We find that Matchett has failed to show prejudice with regard to either portion of Kimberly's testimony. Kimberly testified that in May 2006, she walked in on Matchett and L.M. in Matchett's bedroom and neither Matchett nor L.M. were clothed from the waist down. Matchett's counsel did not object to Kimberly's testimony regarding this incident. However, counsel's failure to make an objection, rule 404 or otherwise, did not prejudice Matchett because L.M. had already testified regarding the May 2006 incident. Therefore, Kimberly's testimony was cumulative.
Kimberly also testified that on one occasion she saw Matchett in L.M.'s bedroom while she was sleeping and Matchett was "pulling" on L.M.'s shirt. Kimberly testified that she thought Matchett was either trying to look down L.M.'s shirt or was caressing the top of her breast, but that Matchett told her he thought he saw a bug or spider going down L.M.'s shirt and that he "went to check." Matchett's counsel did not object to this testimony by Kimberly. To the extent that counsel should have objected to such testimony, any failure to do so was harmless error. That one incident could not have materially influenced the jury, considering all of the other evidence against Matchett, e.g., that Matchett digitally penetrated L.M. and that on numerous occasions, Matchett performed oral sex on L.M. and/or had sexual intercourse with her. Accordingly, Matchett cannot show that he was prejudiced by trial counsel's failure to object to Kimberly's "spider" testimony.
Other Areas of Ineffectiveness.
Matchett also argues that his counsel was ineffective in a number of other areas, but states that the record may be insufficient for review upon direct appeal. First, Matchett claims that counsel was ineffective when, at the second trial, he had Kimberly read portions from a letter marked as exhibit 42. Matchett argues that his trial counsel "apparently asked Kimberly to read portions of Exhibit 42 for the purpose of establishing that Kimberly conspired to fabricate abuse allegations against [Matchett] because she was contemplating divorce, and because of her romantic desire for [another man]," but that by doing so, trial counsel "opened the door for the State to ask Kimberly to read portions of Exhibit 42 that corroborated Kimberly's allegations of abuse against [Matchett]." Brief for appellant at 32. We note that exhibit 42 was not offered or received into evidence, but that it was referenced during the examination of Kimberly and portions were read into the record during questioning. In the portions that were read upon questioning by Matchett's counsel, it became clear that Kimberly had a romantic interest in another man, who was a longtime friend of hers and Matchett's. The portions read during questioning by the State were that Kimberly had walked in on Matchett and L.M. in May 2006 and that she had learned Matchett abused her girls "every time" she left the house. Again, Matchett cannot show prejudice regarding trial counsel's strategy to have Kimberly read portions of exhibit 42. While the questioning by Matchett's counsel did "open the door" for the State to also question Kimberly about exhibit 42, the statements made by Kimberly that came out during the State's questioning were cumulative of the testimony previously given by L.M. and S.H. Because Matchett cannot show prejudice, any error was harmless.
Matchett also argues that his trial counsel failed to interrogate Kimberly, L.M., S.H., and C.H. regarding their knowledge of, and involvement in, the "violent torture of [T.C.] on or about August 15, 2007, in the State of Iowa, and to introduce evidence regarding the same," given that the district court did not rule on the State's motions in limine regarding such. Brief for appellant at 32-33. Matchett notes that the State filed motions in limine to prevent him from inquiring into such event, but claims that the district court never ruled on such motions. Prior to the first trial, the State filed a motion in limine to prohibit Matchett from "introducing evidence or eliciting testimony regarding an incident which occurred in the State of Iowa on approximately August 15, 2009, involving an assault on [T.C.]" The State renewed its motion in limine during the second trial. After reviewing the record, we cannot find a specific ruling on the Iowa incident at any point in these proceedings—prior to the first trial, during the first trial, or during the second trial. It appears that the predicate to this claim is that trial counsel was free to inquire about this incident because the trial court had not ruled on the State's motion in limine to prevent that evidence. But, a ruling on a motion in limine is only a preliminary ruling and the evidence must be offered and objected to at trial to preserve the issue for appellate review. State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997). Because the ruling on the motion in limine was only preliminary, and no offer of proof was made about the anticipated testimony, we cannot assess whether trial counsel's performance in this regard, even if deficient, was prejudicial to Matchett. Therefore, the record is insufficient to address this claim of ineffective assistance of counsel.
CONCLUSION
For the reasons stated above, we find that the district court did make the requisite evidentiary findings pursuant to rule 404(3). We further find that the district court did not err in overruling Matchett's motions to sever, for a mistrial, and for a bill of particulars. Additionally, we find that the sentence imposed by the district court was not excessive. We therefore affirm Matchett's convictions and sentences.
We also find no merit to Matchett's claims that his trial counsel was ineffective, except that we find that the record is insufficient to address the effectiveness of trial counsel regarding introducing evidence concerning the Iowa incident and any related motion in limine.
AFFIRMED.