State v. Cheloha
25 Neb. Ct. App. 403
| Neb. Ct. App. | 2018Background
- In May 2015, 12-year-old R.C. disclosed to a school counselor that her uncle, Jacob T. Cheloha, had touched her buttocks on multiple occasions while she slept; Cheloha was charged with two counts of third-degree sexual assault of a child.
- At trial, a recorded police interview of Cheloha was played and admitted into evidence; the jury later requested access to that video during deliberations and the court allowed unrestricted review over Cheloha’s objection.
- Cheloha moved pretrial to suppress statements made in the interrogation as coerced but did not renew the constitutional objection when the recording was offered at trial.
- A pediatric nurse practitioner/sexual assault nurse examiner (Sarah Cleaver) examined R.C. two days after disclosure and testified about R.C.’s statements; the defense objected on hearsay grounds.
- The jury convicted Cheloha on both counts; he was sentenced to 2 years’ incarceration on one count and 3 years’ probation on the other. He appealed, raising challenges including jury access to the video, denial of the suppression motion, admission of nurse testimony, an intoxication instruction, sufficiency of the evidence, prosecutorial misconduct, and excessiveness of sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cheloha) | Held |
|---|---|---|---|
| Jury access to interrogation video during deliberations | Video was properly received substantive evidence; jury may review it | Allowing unrestricted access improperly emphasized the video and court failed to exercise discretion | Court affirmed: trial court acted within discretion; video was nontestimonial substantive evidence and unrestricted review was permissible (no abuse of discretion). |
| Motion to suppress interrogation statements (coercion) | Statements admissible; pretrial suppression denied | Interrogation was coercive; suppression motion should have been enforced | Waived for appeal: defendant failed to renew constitutional objection at trial when video was offered, so issue not preserved. |
| Admission of nurse examiner’s testimony about victim’s out-of-court statements (hearsay / Neb. Evid. R. 803(3)) | Testimony admissible under medical-diagnosis/treatment hearsay exception (dual-purpose statements OK if reasonably pertinent) | Examination was forensic/investigatory and primarily intended to gather evidence, so statements are hearsay outside the exception | Affirmed: trial court did not err; statements were made in legitimate contemplation of diagnosis/treatment and fell within the medical-purpose hearsay exception. |
| Sufficiency of evidence to show touching was for sexual arousal/gratification | Evidence (multiple touches while victim asleep, squeezing, subsequent pornographic viewing, relationship as uncle/parental figure) supports inference of sexual purpose | Evidence insufficient to prove sexual arousal/gratification beyond a reasonable doubt | Affirmed: viewing evidence in light most favorable to prosecution, a rational trier of fact could find elements proven. |
Key Cases Cited
- State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013) (trial court may allow jury to reexamine evidence during deliberations)
- State v. Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014) (broad discretion to allow jury unlimited access to substantive exhibits; distinction between testimonial and nontestimonial tape-recorded evidence)
- State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012) (statements with dual medical and investigatory purpose admissible under medical-diagnosis hearsay exception if reasonably pertinent to treatment)
- State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017) (standard of review for hearsay rulings and factual determinations about statements made for diagnosis or treatment)
- State v. Brauer, 287 Neb. 81, 841 N.W.2d 201 (2013) (sufficiency analysis: convictions for third-degree sexual assault can be sustained based on limited physical contact when viewed in light most favorable to prosecution)