State v. Cheloha, 907 N.W.2d 317

Background

Victim R.C., age 12, disclosed to a school counselor that her uncle, Jacob T. Cheloha, had touched her buttocks multiple times while she slept; Cheloha was charged with two counts of third-degree sexual assault of a child.
At trial, the prosecution introduced a recorded police interrogation of Cheloha and testimony from a pediatric nurse practitioner/sexual assault nurse examiner (Cleaver) recounting R.C.’s out-of-court statements.
The jury requested and the district court — over defense objection — allowed unrestricted access to the recorded interrogation during deliberations.
Defense moved (pretrial) to suppress statements as coerced but did not renew the constitutional objection when the recording was admitted at trial; defense objected to the recording on hearsay grounds at that time.
Cleaver testified about R.C.’s complaints (burning on urination, discharge) and R.C.’s disclosures of the touching; the court admitted those statements under the medical-diagnosis/treatment hearsay exception.
The jury convicted on both counts; Cheloha received 2 years’ incarceration on count I and 3 years’ probation on count II and appealed raising multiple errors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jury access to interrogation video during deliberations	State: court may allow jurors to review properly admitted substantive exhibits	Cheloha: court failed to exercise discretion and video was nearly testimonial and unduly emphasized	Court: no abuse of discretion; video was nontestimonial substantive evidence and unlimited access was within discretion (citing Vandever/Pangborn)
Motion to suppress recorded statements	State: previous pretrial ruling and no timely objection at admission waived suppression claim	Cheloha: statements were coerced and admission violated his rights	Court: claim waived — defendant failed to timely renew constitutional objection at trial; only hearsay objection was made when recording offered
Admissibility of nurse examiner’s testimony (hearsay)	State: R.C.’s statements were made for medical diagnosis/treatment and admissible under Neb. Evid. R. 803(3)	Cheloha: exam was forensic/ investigatory and primarily for evidence gathering, so 803(3) inapplicable	Court: admitted — dual medical/investigatory purpose permissible; statements made in legitimate contemplation of diagnosis/treatment and reasonably pertinent
Intoxication jury instruction	State: statute prohibits voluntary intoxication as defense	Cheloha: intoxication can negate specific intent under common law	Court: instruction correct — Neb. Rev. Stat. §29-122 precludes voluntary intoxication as defense absent narrow exceptions
Sufficiency of evidence for sexual arousal/gratification element	State: circumstantial facts (multiple touches, context, defendant watched likely pornography) support inference of sexual motive	Cheloha: touching over clothes and isolated incidents insufficient	Court: evidence sufficient — viewing facts in prosecution’s favor a rational juror could find touching done for sexual arousal/gratification
Prosecutorial remarks and mistrial motion	State: rebuttal addressed defense theory and reasonably drawn inferences from evidence	Cheloha: prosecutor improperly attacked why victim’s mother wasn’t called/testified and expressed improper opinion	Court: remarks addressed lack of evidence for collusion theory and did not constitute misconduct; denial of mistrial was not an abuse of discretion
Sentence excessiveness	State: sentences within statutory limits and tailored to offense/impact	Cheloha: sentence excessive	Court: sentences (within statutory limits) not an abuse of discretion given nature, duration, and effect of offenses

Key Cases Cited

State v. Pangborn, 286 Neb. 363 (discretion to allow jury reexamination of evidence)
State v. Vandever, 287 Neb. 807 (broad discretion to allow jurors unlimited access to substantive exhibits; testimonial vs. nontestimonial distinction)
State v. Jedlicka, 297 Neb. 276 (standard for reviewing hearsay rulings under medical-diagnosis exception)
State v. Vigil, 283 Neb. 129 (statements gathered for dual medical and investigatory purposes admissible if reasonably pertinent to diagnosis/treatment)
State v. Brauer, 287 Neb. 81 (sufficiency review for sexual-contact motive; inference of sexual arousal from circumstances)
State v. Knutson, 288 Neb. 823 (standard for sufficiency of evidence review)
State v. Ramirez, 287 Neb. 356 (trial court discretion on mistrial rulings)
State v. Gonzales, 294 Neb. 627 (prosecutor may argue reasonable inferences; misconduct occurs when comments state personal belief)
State v. Casares, 291 Neb. 150 (appellate review of sentences within statutory limits)
State v. Oldson, 293 Neb. 718 (need for timely and specific objection at trial to preserve suppression issues)
State v. Abejide, 293 Neb. 687 (standards for reviewing jury instructions)