State v. Smith
292 Neb. 434
| Neb. | 2016Background
- Defendant Kelvin L. Smith lived with his wife Jennifer and her two daughters (S.D. and A.L.) and was accused of multiple sexual assaults of the daughters between ages ~10–13; alleged conduct included intercourse, digital/oral penetration, cutting, and taking nude photographs of S.D.
- Investigation led to arrest and an information charging multiple counts: first- and third-degree sexual assault of a child, incest, visual depictions of sexually explicit conduct (three counts based on three alleged photographs), and child abuse; three counts were enhanced as second-offense sexual assaults.
- At trial S.D. and A.L. testified; corroborating testimony included friends who heard disclosures and an album recovered from the home that lacked the alleged photos (empty, peel-back album pages).
- A medical exam report for A.L. (showing a normal hymen) surfaced mid-trial and was admitted as exhibit 25; the prosecution’s expert (Haney) testified that a normal exam does not rule out sexual abuse; defense called its own medical witness.
- The jury convicted Smith on all counts; an enhancement hearing admitted a certified copy of a prior conviction (exhibit 37) and the court imposed lengthy consecutive sentences including mandatory minimums; the Court of Appeals affirmed convictions but remanded for resentencing.
Issues
| Issue | State's Argument | Smith's Argument | Held |
|---|---|---|---|
| Admission/authentication of photographic scar exhibits (Exs. 4 & 6) | S.D. identified photos as her legs/scars; lay testimony about peel-back album corroborated removal; leading questions were permissible given context | Authentication failed because identification relied on leading questions and lacked proper foundation | No abuse of discretion: S.D.’s prior testimony and responses provided sufficient foundation; leading questions were within trial court’s discretion |
| Admission of birth certificate (Ex. 9) | Certificate is self-authenticating under Neb. Evid. R. 902(1); even if error, other testimony established defendant’s age | Seal was allegedly not embossed as the document warned, so rule 902(1) not satisfied | Any error harmless: age was proved by other witnesses; conviction unaffected |
| Testimony about photo album condition by detective Spizzirri | Proper lay opinion under Neb. Evid. R. 701 based on personal experience with peel-back albums; not improper bolstering | Testimony was expert or constituted improper bolstering of victim’s credibility | Admissible as lay opinion and not rule 608 bolstering; no error |
| Admission of out-of-court statements by Ryan, Dick, James as prior consistent statements | Statements were consistent with victims’ trial testimony and offered to rebut charge of recent fabrication under Neb. Evid. R. 801(4)(a)(ii) | Inconsistencies as to timing/place and unavailability of writings for cross-examination made them inadmissible | Statements admissible as prior consistent statements; inconsistencies on incidental facts go to credibility, not admissibility |
| Sufficiency of evidence for child-pornography/photo counts (no photos admitted) | Circumstantial evidence (victim descriptions, context of repeated assaults, album placement, poses) can prove depictions and intent under Dost factors | Impossible to convict without the photographs themselves to apply Dost factors and show depiction of genital/pubis area | Convictions affirmed: jury could reasonably infer images displayed genital/pubic/breast areas and were produced for sexual gratification given context and Dost factors |
| Late disclosure of A.L.’s medical exam and expert testimony (Brady / Neb. Rev. Stat. § 29-1912) | Evidence was disclosed during trial and cured any Brady due-process issue; continuance was the statutory remedy if discovery rule violated | Late disclosure prejudiced defense preparation and required new trial | No Brady violation because disclosure occurred during trial; defense waived statutory relief by not requesting a continuance |
| Enhancement and sentencing (authentication of prior conviction; consecutive mandatory minimums) | Exhibit 37 was a duly certified, sealed copy of prior judgment, self-authenticating under rule 902; court imposed consecutive sentences including mandatory minimums | Authentication was insufficient (argued seals should appear on every page); sentencing court mistakenly believed mandatory minimums had to be consecutive to other counts | Exhibit 37 was properly authenticated and sufficient for enhancement; but sentencing based on a legal mistake about automatic concurrency—case remanded for resentencing so court can exercise proper discretion |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s nondisclosure of material, favorable evidence requested by defendant violates due process)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (factors for determining whether an image of a child depicts sexual activity/erotic nudity)
- U.S. v. Villard, 885 F.2d 117 (3d Cir. 1989) (discusses whether child-pornography convictions may stand without the actual images when circumstantial evidence addresses Dost factors)
- State v. Castillas, 285 Neb. 174 (Neb. 2013) (discussion cited regarding mandatory minimums and concurrency)
- State v. Berney, 288 Neb. 377 (Neb. 2014) (clarifies distinction between crimes that statutorily require consecutive mandatory minimums and enhancements where consecutive imposition is discretionary)