Leonardo Martinez was charged by information with two counts of first degree sexual assault, in violation of Neb. Rev. Stat. § 28-319
FACTS
The victim’s mother, Tracy P., testified that her son Matthew P. was 8 years old and in the second grade at the time of trial. Tracy had known the defendant, Leonardo “Leo” Martinez, for the last 10 years. Martinez, age 58 at the time of trial, lived with Juanita Garcia, Matthew’s babysitter. Garcia babysat for Matthew from July 1991 to August 1993 while Tracy worked and when Tracy went bowling. Matthew lived with Garcia from July 14 to August 12, 1991, when Tracy was in Hastings for inpatient treatment. Matthew was 5 years old at that time.
In June 1994, Tracy was informed by her babysitter at that time, Leslie War Bonnett, that Matthew had been kissing War Bonnett’s son. Leslie and her husband, Jim War Bonnett, told Tracy that Matthew had “told them about other events that had happened, sexual events.” Since Tracy suspected that her son had been sexually molested, she contacted the Hemingford Police Department on June 18. After she spoke with Hemingford police officers, it was suggested that Tracy take her son to be interviewed by Sgt. Rae Ann Christensen of the Alliance Police Department. Christensen was suggested because of her experience and specialized training in child abuse cases.
Christensen testified that she interviewed Matthew on June 24, 1994, at the request of the Hemingford Police Department. As an investigative technique, Christensen had Matthew identify different parts of the body on a picture of a male child “because a lot of times children will use different terminology than what adults do so that when I get to asking the questions about what happened I know what he’s talking about.” Matthew identified a penis as being a “pee-pee.” Matthew was then asked to mark the parts of the body where Martinez had touched him. The picture introduced into evidence indicates that Matthew marked the mouth, hand, buttocks, and groin area of the picture. Matthew also told Christensen that Martinez had made Matthew touch and suck Martinez’ “pee-pee.”
On cross-examination, Christensen was asked whether Matthew had talked about sexual actions he had taken with three other children. Christensen indicated that Matthew described sexual acts he had with these children. However, Christensen also testified that in her experience, it was not uncommon for children who have had sexual experience with adults to act out those experiences with other children. An audiotape of Christensen’s interview with Matthew was received as evidence at trial. In that interview, Matthew indicated that the first time that Martinez hurt him was while Matthew was staying with Martinez and Garcia the month his mother was gone to Hastings “to stop drinking.”
Matthew was allowed to testify by videotaped deposition pursuant to Neb. Rev. Stat. § 29-1926 (Reissue 1989). Matthew stated that he was 8 years old and in the second grade. After demonstrating that he knew the difference between telling the truth and telling a lie, Matthew testified that Martinez lived with Garcia. Matthew stated that Martinez had “stuck [his] private part up my butt” and that Martinez had hurt him more than once. The assaults took place behind the car in the garage at Garcia’s house. Matthew stated that he told Martinez to stop it but he would not and that Martinez had told him not to tell anyone. At the time of the assaults, Martinez told Matthew to pull his pants down, but when he would not, Martinez pulled them down himself. When asked how many times Martinez did this to him, Matthew responded, “I can’t remember. ” However, Matthew later stated that he was in kindergarten the first time that Martinez did this to him.
Dr. John Ruffing, Jr., a physician and surgeon practicing in Hemingford, Nebraska,
In the late summer of 1991, after she returned from inpatient treatment at Hastings, Tracy noticed for the first time that her son was having problems with fecal incontinence. Tracy did not take Matthew to the doctor at that time because she felt that it was her fault and that she had not taught Matthew proper hygiene.
Martinez testified through an interpreter in his own defense at trial and denied ever sexually assaulting Matthew. Martinez’ motion for a directed verdict was sustained as to the second and third counts of the information. Martinez was found guilty by the jury of one count of first degree sexual assault.
ASSIGNMENTS OF ERROR
In his appeal to this court, Martinez, assigns the following errors: (1) “The district court erred in giving a jury instruction that allowed the State to prove the first element of First Degree Sexual Assault happened in a time period from July 1, 1991 to September 1, 1993,” (2) the district court erred in denying Martinez his constitutional right to confront witnesses, (3) the district court erred in denying Martinez his constitutional right to compulsory process, and (4) the district court erred by imposing an excessive sentence.
STANDARD OF REVIEW
A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
State
v.
Brunzo,
ANALYSIS
Sufficiency of Information.
Martinez’ first assignment of error is that “[t]he district court erred in giving a jury instruction that allowed the State to prove the first element of First Degree Sexual Assault happened in a time period from July 1, 1991 to September 1, 1993.” The jury was instructed that the elements of the offense included that “[o]n or about July 1, 1991, to September 1, 1993, in Box Butte County, Nebraska, Martinez did subject Matthew [R] to sexual penetration by placing any part of his body into Matthew [P.’s] anal opening.” Martinez argues that from the record “it is indistinguishable on which occasion of alleged criminal conduct Martinez was convicted.” Brief for appellant at 5.
Martinez’ assignment of error attacks the sufficiency of the jury instruction which defined the timeframe of the crime, but the argument in Martinez’ brief under this assignment is that the information was insufficient to bar a future prosecution for the same criminal conduct. The information had charged that the first degree sexual assault had occurred “between July 1, 1991 and June 18, 1994.” However, the trial court limited the timeframe in the instructions to the period when the victim was being babysat at the house where Martinez also resided: July 1, 1991, to September 1, 1993. We address the argument advanced by Martinez, and consequently our focus is on the information.
An information which alleges the commission of a crime using the language of
Initially, we note that Martinez pled not guilty to the information. He did not move to quash the information as provided for in Neb. Rev. Stat. § 29-1808 (Reissue 1989), nor did he otherwise attack the sufficiency of the information until this appeal. The Nebraska Supreme Court has held that when an information or complaint is questioned for the first time on appeal, it must be held sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted.
State v. Laymon,
Martinez argues that
State v. Quick,
Therefore, relying on Piskorski, we apply to the facts before us the following proposition of law: When a conviction could be based on any of two or more occasions of indistinguishable criminal conduct alleged at trial, the record must clearly indicate which occasion of criminal conduct supports the conviction in order for the judgment to serve as a bar to future prosecution.
We do not believe that
State
v.
Piskorski,
In
State
v.
Saraceno,
It is now generally recognized that “[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. See Cohen v. United States,378 F.2d 751 (9th Cir.), cert. denied,389 U.S. 897 ,88 S. Ct. 217 ,19 L. Ed. 2d 215 (1967). Rather, such a count is only duplicitous where the policy considerations underlying the doctrine are implicated. See United States v. Margiotta,646 F.2d 729 , 733 (2d Cir. 1981), cert. denied,461 U.S. 913 ,103 S. Ct. 1891 ,77 L. Ed. 2d 282 (1983).” United States v. Sugar,606 F. Supp. 1134 , 1146 (S.D.N.Y. 1985); see also United States v. O’Neill, 463 F. Sup. 1200, 1202-1204 (E.D. Pa. 1979), and cases cited therein. “These [considerations] include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any one of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution. [United States v. Murray,618 F.2d 892 , 896 (2d Cir. 1980)].” United States v. Margiotta, supra.
In
Piskorski,
the defendant was charged by an amended information with one count of first degree sexual assault on a child. The information, amended at the close of the State’s case to conform to the evidence, alleged that the crime had occurred on or after September 1 and before December 25, 1982. Piskorski argued that the State offered proof of several potentially criminal acts, and as a result, the amended information was insufficient because Piskorski had “no way of knowing which specific act was involved in this conviction and which one is now barred.”
State v. Piskorski,
When one reviews the information, the instructions to the jury, and the record in this case, one can be left with no doubt that the act charged, and upon which Piskorski was convicted, was a specific act involving assault on the young child while the mother was present. The record makes it clear that only one such event occurred while the mother was present, although other violations, not charged in this information, may have occurred.Therefore, it would not be difficult to establish which act was involved that resulted in the conviction and is a bar to a subsequent prosecution for the same offense.
Id.
at 549,
Therefore,
Piskorski
is a “one count — one act” case, and thus it is not a “duplicitous information” case as was discussed in
State
v.
Saraceno,
The case at hand is factually closer to Piskorski than to Quick. Here, Matthew testified that Martinez assaulted him more than once, but never specified how many times. He did, however, testify that it first happened in the babysitter’s garage while he was in kindergarten, and his statement to the investigating officer (received in evidence) was that the first time was while his mother was receiving treatment “to stop drinking.” Thus, although the record contains evidence of more than one assault, there is only one count charged, and there is evidence which defines with reasonable certainty the time and place of at least one assault — the first one — while thé mother was away in treatment. Accordingly, the instant case is not an allegedly duplicitous information case such as Saraceno, which involved a 5-year history of sexual assault and abuse of a girl who was 10 years old when she reported the crimes. Saraceno involved 11 separate counts against the defendant which encompassed various parts of a 3-year timespan. Even then, the Connecticut court turned back the challenge to the information on grounds that it was duplicitous, on notice grounds, and finally on the ground that the trial court should have granted a further bill of particulars:
We also recognize, however, that in a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish, by judicial fiat, a class of crimes committable with impunity.
We conclude, as have other jurisdictions considering the issue, that as long as the information provides a time frame which has a distinct beginning and an equally clear end, within which the crimes are alleged to have been committed, it is sufficiently definite to satisfy the requirements of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. See, e.g., United States v. Roman,728 F.2d 846 , 851 (7th Cir.), cert. denied,466 U.S. 977 ,104 S. Ct. 2360 ,80 L. Ed. 2d 832 (1984) (crimes committed over eleven year period); United States v. McCown,711 F.2d 1441 , 1450 (9th Cir. 1983) (crimes committed over five month period); People v. Baugh,145 Ill. App. 3d 133 ,495 N.E.2d 688 (1986) (crimes committed over nine month period).
State
v.
Saraceno,
The Iowa Supreme Court stated in
State
v.
Rankin,
We are aware that the court in
State v. Quick, supra,
rejected the solution of a “blanket bar to future prosecution” of Quick for any of the four alleged incidents of sexual assault which may have occurred between April 25, 1987, and April 9, 1988, the timeframe of the amended information.
In
State v. Fawcett,
In State v. Fawcett, supra, the court listed the factors used by courts in applying the “reasonableness test”: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; (3) the nature of the offense, including whether it is likely to be discovered immediately; (4) the length of the time period at issue compared to the number of criminal acts alleged; (5) the passage of time between the alleged period of time and the defendant’s arrest; (6) the length of time between the offense and when charges are brought; and (7) the ability of the victim to particularize the date and time of the offense.
These factors, together with the unique nature of sexual crimes against children, are important in judging whether the
constitutional protection against double jeopardy is offended when the best that can be done is to charge the crime within a period of time, rather than to a specific date. In cases of sexual crimes against children, a young child lacks the ability to particularize dates as adults do, there usually are neither eyewitnesses nor reliable trace evidence, and delayed reporting is often the norm. This court touched on some of these matters in its discussion of child sexual abuse accommodation syndrome in
State
v.
Doan,
When only one sexual assault within the charging period is determinable as having occurred during that period by linkage to another event, which then furnishes a reasonably definite time for an offense, the requirement of the Double Jeopardy Clause that the defendant be able to plead the conviction as a bar to further prosecution is satisfied when used in conjunction with a “blanket bar” for the time period in the
In reaching this conclusion, we reject the prohibition against a “blanket bar” from
State
v.
Quick,
Therefore, Fawcett’s double jeopardy protection can also be addressed in any future prosecution growing out of this incident. If the state is to enjoy a more flexible due process analysis in a child victim/witness case [in pleading the charge in the information], it should also endure a rigid double jeopardy analysis if a later prosecution based upon the same transaction during the same time frame is charged. See State v. St. Clair,418 A.2d 184 , 189 (Me. 1980).
Our analysis here is not aimed at whether Martinez sexually assaulted Matthew. The jury has determined that he did, and the sufficiency of the evidence to uphold that conviction is not challenged. Instead, our analysis goes to whether this conviction must be reversed because the charging information was not definite and certain enough to enable Martinez to use this conviction as a bar in the event of future prosecution. We cannot help but observe that this is a speculative exercise, since there is no further prosecution disclosed by this record. Nonetheless, if future prosecution of Martinez for sexual crimes against Matthew is undertaken by the State, Martinez will be able to plead that further prosecution based on a sexual assault of Matthew between July 1, 1991, and June 18, 1994, the timeframe of the information, is barred by the Double Jeopardy Clause of the U.S. Constitution.
As said in
State
v.
Chambers,
Recognition of the concept of a “blanket bar” accords Martinez broad protection under constitutional double jeopardy requirements in the event of future prosecutions. In doing so, the State is held to the expansive time period which it specified in the information. In so concluding, we recognize the difficulties inherent in child sexual abuse prosecutions with young victims who cannot particularize dates. When there are multiple assaults, the inability to define a date often becomes even more pronounced. We balance such difficulties against the defendant’s constitutional right to be free from double jeopardy as a result of future prosecutions. See
State v. Rankin,
Martinez ’ Right to Confrontation of Victim.
Martinez also argues that the court denied him his right to confrontation by limiting his cross-examination of the victim. Specifically, Martinez' asserts - he was denied the right to confront the victim during the victim’s deposition which was used in court in place of the victim’s live testimony. The victim, 8 years old at the time of trial, was . allowed to testify by videotaped deposition pursuant to Neb. Rev... Stat. § 29-1926 (Reissue 1989). Our review of the record reveals that Martinez has- waived any error with regard to confrontation of this witness, since he did not object to the introduction of the videotaped deposition at trial. It is fundamental that a party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the eviderice received without objection.
State v. Williams,
Denial of Right to Compulsory Process.
Martinez next argues that he was denied his right to compulsory process when the trial court refused to allow him to depose and call as witnesses at trial the three children the victim claimed to have had sexual relations with. Martinez argues that these witnesses would have denied sexual contact with the victim. Martinez then asserts that this testimony would serve to impeach the victim’s statements made to Christensen and would put the victim’s credibility into question. The trial court denied Martinez’ motion to depose these witnesses and also sustained the State’s motion in limine preventing the testimony of these three children at trial. The trial court reasoned that the evidence was not relevant to the issues in the case and was an improper collateral attack upon the victim’s testimony. The issue presented is the extent to which a defendant can introduce evidence of collateral matters in order to attack the victim’s credibility. We note that Martinez does not assign as error the sustaining of the motion in limine which prevented him from making inquiry of Matthew about such matters on cross-examination during the videotaped deposition.
A trial court has the discretion to order depositions in criminal cases if the information may affect the outcome of the trial. Neb. Rev. Stat. § 29-1917 (Cum. Supp. 1994). See, also,
State v. Roenfeldt,
In the present case, the discovery sought by the defense with regard to Matthew’s purported sexual relations with other children is collateral to the allegations against Martinez. We understand the argument Martinez wanted to make at trial to be that if Matthew lied about his sexual activity with
Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 1989), provides that
[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in section 27-609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness : . . .
Obviously, Martinez’ use of the three children as witnesses was solely for the purpose of attacking Matthew’s credibility and would be prohibited extrinsic evidence under rule 608(2).
This section was applied in
State
v.
Trackwell,
In
State v. Williams, 219
Neb. 587,
Excessive Sentence.
Finally, Martinez argues that the sentence imposed against him was excessive when compared to the sentences received by two other individuals. The problem with this argument is that the record here does not reveal that these two individuals were convicted and sentenced for assaulting Matthew. Martinez was sentenced to 15 to 25 years’ imprisonment for his conviction of first degree sexual assault. A sentence within statutory limits will not be disturbed upon appeal absent an abuse of discretion, meaning that the trial court’s ruling is clearly untenable and unfairly deprives the defendant of a substantial right and a just result.
State
v.
Philipps,
CONCLUSION
The conviction and sentence are affirmed in all respects.
Affirmed.