1. The Nebraska Supreme Court's review of jury instructions is independent of trial court determinations, focusing on legal correctness.
2. Appellate courts conduct a de novo review of whether trial courts have properly exercised their gatekeeping role in admitting expert testimony. If the gatekeeping function is upheld, the trial court's decisions on evidence admission are reviewed for abuse of discretion.
3. Sentences that fall within statutory limits are generally not disturbed on appeal unless there is an abuse of discretion by the trial court.
4. Judicial abuse of discretion is defined as a trial judge's decisions being clearly untenable or unfairly depriving a party of a substantial right.
5. Jury instructions are subject to harmless error review, requiring reversal only if an erroneous instruction adversely affects the substantial rights of the complaining party. The appellant bears the burden to demonstrate that the instruction was prejudicial.
6. Expert testimony admissibility requires answering four preliminary questions regarding the expert's qualifications, the relevance of the testimony, its utility for understanding evidence or resolving factual issues, and whether its probative value is overshadowed by the risk of unfair prejudice.
7. The trial court serves as a gatekeeper to ensure the relevance and reliability of expert opinions, necessitating an initial assessment of the reasoning and methodology behind the testimony.
8. The Daubert standard does not uniformly apply to all expert testimony; only opinion testimony is subject to Daubert scrutiny.
9. When assessing appeals regarding excessive sentences within statutory limits, the appellate court evaluates whether the trial court abused its discretion by considering established factors and legal principles.
10. Judicial abuse of discretion occurs when decisions are based on untenable or unreasonable reasons, or when actions conflict with justice, conscience, reason, and evidence.
Sentencing judges must consider several factors when imposing a sentence, including the defendant's age, mentality, education, social background, past criminal behavior, motivation for the crime, the nature of the offense, and the level of violence involved. Sentencing is a subjective judgment, allowing judges to use their observations of the defendant's demeanor and the surrounding circumstances. Trial courts have the discretion to impose consecutive sentences for separate offenses if the offenses require different evidence to prove their elements. In the case of Christina M. Greer, who faced 13 counts related to child sexual assault across four cases, she was convicted of 11 counts and sentenced to 64 to 102 years in prison. Greer's charges included first-degree sexual assault and child enticement involving multiple victims, and her trial was delayed due to pretrial motions related to the introduction of evidence regarding prior alleged sexual conduct and other acts.
Colleen Brazil, the forensic interview program manager at a child advocacy center, testified about the concept of "grooming" in support of the State's case against Greer, who was accused of grooming children at her home. The State's motion referencing Neb. Rev. Stat. 27-404 and 27-414 was filed on December 26, 2018, and granted on March 1, 2019, following testimonies from Greer’s daughter and another victim, J.H. On August 6, 2019, Greer sought to prevent any mention of "grooming" without court permission, citing it as a specialized term requiring expert testimony. The district court postponed ruling on this request until a later hearing.
On March 3, 2020, the court denied Greer’s motions in limine, maintaining that the issue had been previously addressed. Trial commenced on March 2, 2021, and on March 3, Greer moved to exclude Brazil's testimony, arguing it violated standards from Daubert v. Merrell Dow Pharmaceuticals, Inc. The court initially indicated that "grooming" was not suitable for a Daubert hearing but later agreed to hold one. During this hearing, Brazil testified that she lacked knowledge of the specific facts of Greer’s case and would not opine on whether Greer groomed her alleged victims. The district court ruled in favor of the State, affirming Brazil’s expert status but preventing the State from asking whether Greer’s actions constituted grooming.
The jury found Greer guilty on multiple counts, including first-degree sexual assault of a child and child abuse, while acquitting her on others. She received a total sentence of 64 to 102 years, with specific terms for each count and concurrent sentences for certain charges.
The district court instructed the jury on the definition of 'penetration' using an incomplete version of instruction No. 4, which was later revised and read again after a recess. Greer objected to this revision and subsequently appealed her convictions and sentences, claiming errors in the jury instruction process, the admission of expert testimony, and the imposition of excessive sentences.
In reviewing the jury instructions, it is noted that the appellate court evaluates the correctness of jury instructions as a legal question, independent of the trial court's conclusions. A trial court's admission of expert testimony is reviewed for an abuse of discretion if the court properly performed its gatekeeping role. Sentences within statutory limits are generally upheld unless there is a clear abuse of discretion by the trial court.
Greer contended that the second reading of instruction No. 4 was prejudicial because it emphasized penetration in a case where she denied such an act. She argued that all jury instructions should have been re-read to mitigate the focus on any single instruction. However, the appellate court found Greer's arguments unpersuasive, emphasizing that she bore the burden of demonstrating prejudice from the initial incomplete instruction, which she failed to do as the record did not disclose its contents. Consequently, without knowledge of the initial instruction, the court could not ascertain any prejudice resulting from the subsequent reading of the complete instruction. Thus, Greer did not meet her burden of proof regarding the claimed prejudicial error in the jury instruction process.
Greer’s reliance on State v. Abram and State v. Claycamp is unfounded as those cases are distinguishable from her situation. In Abram, although the jury received a written instruction suggesting that the defendant's failure to testify indicated guilt, the correct oral instruction was provided, leading the court to classify the error as non-structural and subject to harmless error analysis. However, the written instruction's emphasis rendered the error not harmless. In Claycamp, a contradictory admonishment from the court about self-defense instructions led the Court of Appeals to reverse the decision based on a similar harmless error standard. In contrast, Greer’s case involved an instruction that was not incorrect, only incomplete, and the court indicated it would supplement the instruction. The record lacks a complete account of the instructions originally read to the jury, and there is no claim that either the initial or final instructions were incorrect. Greer’s argument that reiterating the definition of penetration emphasized that concept lacks authority to support her claim of prejudice. Consequently, she has not demonstrated harm from the district court’s handling of instruction No. 4, leading to a rejection of her assignment of error.
In her second assignment of error, Greer claims the district court improperly allowed Brazil to testify as an expert on grooming, arguing that the court did not sufficiently record its findings as a gatekeeper regarding Brazil’s expertise and that grooming lacks scientific validity.
Neb. Rev. Stat. 27-702 allows a qualified expert to testify in the form of an opinion if their specialized knowledge assists the trier of fact in understanding evidence or determining relevant facts. The admissibility of expert testimony hinges on four criteria: the witness's qualifications, the relevance of the testimony, its utility in understanding evidence or resolving factual disputes, and whether its probative value is outweighed by unfair prejudice or other factors under Neb. Rev. Stat. 27-403. Trial courts serve as gatekeepers to assess the relevance and reliability of expert opinions, specifically evaluating the validity of the reasoning or methodology used. However, not all expert testimony requires a Daubert analysis, especially if it does not consist of opinion testimony. Once a Nebraska court has validated a scientific method under Daubert, subsequent courts may rely on that precedent unless new developments challenge its reliability. In this case, the court found that the expert, Brazil, did not offer opinion testimony regarding the defendant Greer’s conduct and therefore Daubert did not apply. Brazil's extensive experience in forensic interviews of child sexual assault victims justified her qualification as an expert, and the district court did not abuse its discretion in admitting her testimony. The opinion in Edwards was distinguished, as the issues in that case were not applicable here, and any categorical rejection of expert testimony on grooming was disapproved.
Greer’s appeal regarding the excessive nature of her sentences is without merit. All sentences were within statutory limits, and the court considered her presentence investigation as well as relevant factors from case law. Greer argues her sentences should be served concurrently as they arose from the same transactions. The State supported this assertion regarding counts 7 through 12; however, the court determined that counts 5 and 6, involving the same victim, should also be concurrent. Counts 2 and 3 stemmed from the same series of transactions, suggesting they too should be served concurrently.
The appellate court evaluates whether the sentencing court abused its discretion based on established factors and legal principles. An abuse of discretion occurs only when the trial court's rationale is unreasonable or unjust. The sentencing judge should consider multiple factors, including the defendant's background, mental state, and the nature of the offense.
While it is within the trial court's discretion to impose consecutive sentences for separate crimes, Greer contends that her sentences for counts 5 and 6 should run concurrently. However, since her sentence for count 4 is already concurrent with the others, this argument lacks merit. Although the child abuse counts involve similar conduct, they pertain to different victims, necessitating separate proofs. Greer's claim that the child abuse charges relate to count 1 fails as they require distinct elements for conviction.
Regarding the witness tampering counts, the court found that evidence for these charges was needed on different occasions, affirming the lack of abuse of discretion by the district court in ordering consecutive sentences. Consequently, the district court's judgments and convictions are upheld.
