State v. Schmidt

state of neBrasKa , appellee , v .
roger K. sChMIDt , sr ., appellant .
750 N.W.2d 390
Filed June 3, 2008. 	No. A-07-556.
1. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determinations of relevancy under Neb. evid. R. 401, Neb. Rev. Stat.
§ 27-401 (Reissue 1995), and prejudice under Neb. evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be
reversed absent an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Constitutional Law: Appeal and Error. An appellate court reviews de novo a
trial court’s determination of the protections afforded by the Confrontation Clause
and reviews the underlying factual determinations for clear error.
5. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
6. Confessions: Police Officers and Sheriffs. Whether a defendant’s statements
resulted from an officer’s promise is a question of fact.
7. Motions to Suppress: Appeal and Error. An appellate court will uphold the trial
court’s ruling on a motion to suppress unless the trial court’s findings of fact are
clearly erroneous.
8. ____: ____. An appellate court does not reweigh the evidence or resolve conflicts
in the evidence, but, rather, recognizes the trial court as the finder of fact and
considers that the trial court observed the witnesses testifying in regard to motions
to suppress.
9. Confessions: Appeal and Error. A district court’s finding and determination
that a defendant’s statement was voluntarily made will not be set aside on appeal
unless this determination is clearly erroneous.
10. Trial: Evidence: Juries. A motion in limine is but a procedural step to prevent
prejudicial evidence from reaching the jury. It is not the office of a motion in
limine to obtain a final ruling upon the ultimate admissibility of the evidence.
Rather, its office is to prevent the proponent of potentially prejudicial matter from
displaying it to the jury, making statements about it before the jury, or presenting
the matter to the jury in any manner until the trial court has ruled upon its admis-
sibility in the context of the trial itself.
11. Trial: Pleadings: Proof: Appeal and Error. In order to preserve any error before
an appellate court, the party opposing a motion in limine which was granted must
STATe v. SCHMIDT 	741
Cite as 16 Neb. App. 741
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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make an offer of proof outside the presence of the jury unless the evidence is
apparent from the context within which questions were asked.
12. Criminal Law: Constitutional Law: Trial: Witnesses. The right of a person
accused of a crime to confront the witnesses against him or her is a fundamental
right guaranteed by the 6th amendment to the U.S. Constitution, as incorporated in
the 14th amendment, as well as by article I, § 11, of the Nebraska Constitution.
13. Constitutional Law: Trial: Witnesses. The functional purpose of the
Confrontation Clause is to ensure the integrity of the factfinding process through
the provision of an opportunity for effective cross-examination.
14. Constitutional Law: Trial: Juries: Witnesses. An accused’s constitutional right
of confrontation is violated when either (1) he or she is absolutely prohibited from
engaging in otherwise appropriate cross-examination designed to show a proto-
typical form of bias on the part of the witness, or (2) a reasonable jury would have
received a significantly different impression of the witness’ credibility had counsel
been permitted to pursue his or her proposed line of cross-examination.
15. Trial: Testimony. The right of cross-examination is not unlimited.
16. Trial: Testimony: Appeal and Error. The scope of cross-examination of a wit-
ness rests largely in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion.
17. Trial: Rules of Evidence: Testimony: Proof: Appeal and Error. error may
not be predicated upon a ruling of a trial court excluding testimony of a witness
unless the substance of the evidence to be offered by the testimony was made
known to the trial judge by offer or was apparent from the context within which
the questions were asked.
18. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
19. Evidence: Words and Phrases. evidence is relevant when it has any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
20. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
21. Jury Instructions: Convictions: Appeal and Error. Before an error in the giving
of instructions can be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
22. Jury Instructions: Appeal and Error. Jury instructions must be read as a whole,
and if they fairly present the law so that the jury could not be misled, there is no
prejudicial error.
23. Confessions: Appeal and Error. In making the determination of whether a
statement is voluntary, a totality of the circumstances test is applied, and the
determination reached by the trial court will not be disturbed on appeal unless
clearly wrong.
24. Confessions: Police Officers and Sheriffs. Generally, a defendant’s statement is
inadmissible only if the totality of the circumstances shows that the police offered
the defendant a benefit in exchange for the statement.
742 	16 NeBRASKA APPeLLATe RePORTS

25. Confessions. If a benefit is offered in exchange for testimony, and the offer is
definite, then a confession is involuntary and must be suppressed.
26. Confessions: Police Officers and Sheriffs: Evidence. Mere deception will not
render a statement involuntary or unreliable; the test for determining the admis-
sibility of a statement obtained by police deception is whether that deception
produced a false or untrustworthy confession or statement.
Appeal from the District Court for Jefferson County: paul W.
K orslunD, Judge. Affirmed.
James R. Mowbray and Kelly S. Breen, of Commission on
Public Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
sIevers , M oore, and C assel, Judges.
M oore, Judge.
INTRODUCTION
Roger K. Schmidt, Sr., appeals from his convictions follow-
ing a jury trial in the district court for Jefferson County of one
count of first degree sexual assault on a child and four counts of
sexual assault of a child. On appeal, Roger raises issues relat-
ing to the court’s rulings on the State’s motion in limine and
on the State’s objection to certain cross-examination question-
ing, a particular jury instruction, and the admission of certain
statements Schmidt made to a police officer. For the reasons set
forth herein, we affirm.
BACKGROUND
On May 16, 2006, Schmidt was charged with two counts of
first degree sexual assault on a child in violation of Neb. Rev.
Stat. § 28-319(1)(c) (Reissue 1995), a Class II felony, and five
counts of sexual assault of a child in violation of Neb. Rev.
Stat. § 28-320.01 (Cum. Supp. 2004), a Class IIIA felony. The
alleged victims were M.C., R.S., and K.S.
On September 7, 2006, Schmidt filed a motion to suppress
statements he had made. On October 18, the district court
entered an order overruling Schmidt’s motion concerning state-
ments stemming from interrogations that occurred on April 27
but sustaining his motion as to an interrogation that occurred on
STATe v. SCHMIDT 	743
Cite as 16 Neb. App. 741

May 1. On March 9, 2007, the district court entered an order
ruling on the parties’ pretrial motions in limine, in particu-
lar sustaining the State’s motion in limine. We have set forth
additional details of the pretrial proceedings in the analysis
section below.
A jury trial was held March 12 through 14, 2007, and on
March 14, the jury returned a verdict finding Schmidt guilty of
one count of first degree sexual assault on a child and of four
counts of sexual assault of a child and not guilty of the remain-
ing two counts. Because of the limited nature of the assign-
ments of error on appeal, we only set forth the portions of the
trial testimony as necessary to our resolution of this appeal in
the analysis section below.
On May 18, 2007, the district court entered an order sentenc-
ing Schmidt to imprisonment for a period of 18 to 25 years on
the first degree sexual assault on a child conviction and a period
of not less than 5 years nor more than 5 years on each convic-
tion for sexual assault of a child. The court ordered Schmidt’s
sentences to run consecutively. Schmidt subsequently perfected
his appeal to this court.
ASSIGNMeNTS OF eRROR
Schmidt asserts that the district court erred in (1) sustaining
the State’s motion in limine, (2) sustaining the State’s objection
to certain cross-examination questioning of a witness regarding
an unfounded allegation, (3) submitting jury instruction No. 14,
and (4) admitting Schmidt’s statements to a police officer.
STANDARD OF ReVIeW
[1-3] In proceedings where the Nebraska evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
The exercise of judicial discretion is implicit in determinations
of relevancy under Neb. evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 1995), and prejudice under Neb. evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s deci-
sion regarding them will not be reversed absent an abuse of
744 	16 NeBRASKA APPeLLATe RePORTS

discretion. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542
(2007), cert. denied sub nom. Sommer v. Nebraska, 552 U.S.
876, 128 S. Ct. 186, 169 L. ed. 2d 126. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. State v. Archie, 273
Neb. 612, 733 N.W.2d 513 (2007).
[4] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause and reviews the underlying factual determinations for
clear error. State v. Jacobson, 273 Neb. 289, 728 N.W.2d
613 (2007).
[5] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Fischer, 272 Neb. 963, 726
N.W.2d 176 (2007). When dispositive issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below. Id.
[6-9] Whether a defendant’s statements resulted from an
officer’s promise is a question of fact. State v. Ray, 241 Neb.
551, 489 N.W.2d 558 (1992). An appellate court will uphold
the trial court’s ruling on a motion to suppress unless the trial
court’s findings of fact are clearly erroneous. State v. Eberly,
271 Neb. 893, 716 N.W.2d 671 (2006). In making this deter-
mination, the appellate court does not reweigh the evidence
or resolve conflicts in the evidence, but, rather, recognizes the
trial court as the finder of fact and considers that the trial court
observed the witnesses testifying in regard to such motions.
See id. A district court’s finding and determination that a
defendant’s statement was voluntarily made will not be set
aside on appeal unless this determination is clearly erroneous.
State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
ANALYSIS
Motion in Limine.
Schmidt asserts that the district court erred in sustaining the
State’s motion in limine, arguing the court’s ruling prevented
him from presenting relevant evidence that M.C. and K.S. both
had previously reported allegations of sexual abuse by other
STATe v. SCHMIDT 	745
Cite as 16 Neb. App. 741

perpetrators and that by experience, both were aware of the pro-
priety of reporting “‘bad touches’” and the protections afforded
by their parents, police, and counselors. Brief for appellant at
12. Schmidt argues that he was denied his constitutional rights
to confrontation and compulsory process to answer and rebut
evidence presented by the State to explain why M.C. and K.S.
did not promptly report Schmidt’s alleged abuse and why K.S.
repeatedly denied her father’s allegations against Schmidt.
[10,11] A motion in limine is but a procedural step to prevent
prejudicial evidence from reaching the jury. State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002). It is not the office of
such a motion to obtain a final ruling upon the ultimate admis-
sibility of the evidence. Id. Rather, its office is to prevent the
proponent of potentially prejudicial matter from displaying
it to the jury, making statements about it before the jury, or
presenting the matter to the jury in any manner until the trial
court has ruled upon its admissibility in the context of the trial
itself. Id. In order to preserve any error before an appellate
court, the party opposing a motion in limine which was granted
must make an offer of proof outside the presence of the jury
unless the evidence is apparent from the context within which
questions were asked. State v. Bruna, 12 Neb. App. 798, 686
N.W.2d 590 (2004).
The State’s motion in limine is not included in our record,
but the record does include the bill of exceptions from the pre-
trial hearing on the State’s motion and certain motions in limine
by Schmidt and the district court’s rulings on those motions.
At the hearing on the motions in limine, Schmidt made an
offer of proof consisting of the pretrial depositions of M.C.,
M.C.’s mother, K.S., and K.S.’ parents. The depositions show
that M.C. and K.S. were interviewed regarding prior possible
allegations of sexual assault by individuals other than Schmidt.
Specifically, K.S. was interviewed when she was 4 years old in
connection with a suspicion by her parents of a sexual assault
by a cousin. M.C. was interviewed when she was approxi-
mately 51⁄2 years old, but she made no allegations of sexual
assault. Schmidt’s counsel argued to the court that he wished
to cross-examine K.S. and M.C. regarding these prior matters
and to call their parents as witnesses to inquire about the prior
746 	16 NeBRASKA APPeLLATe RePORTS

matters. Schmidt’s counsel argued further that Schmidt’s right
of confrontation included the right to inquire regarding the
prior matters because they provided a basis for a child witness’
becoming educated in the process of making reports of sexual
abuse. The court inquired as follows:
THe COURT: So in other words, if a child knew good-
touch bad-touch, had actually reported something like that
before, you want to bring that out in cross-examination
and/or examination of the parents and then be able to ask
why did you wait — why did you wait whatever amount
of time you waited before you reported it in this case; is
that the gist of it?
[Schmidt’s counsel]: That’s the gist of it.
On March 9, 2007, the district court entered an order rul-
ing on the motions in limine. The court did not find that the
previous matters constituted past sexual behavior within the
scope of Neb. Rev. Stat. § 28-321 (Reissue 1995) or that the evi-
dence should be barred under the provisions of Neb. Rev. Stat.
§ 27-404 (Reissue 1995). The court did find, however, that the
evidence should be excluded under the provisions of § 27-403
because any probative value was substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Accordingly, the court granted the State’s
motion in limine.
At trial, Schmidt’s counsel cross-examined witnesses, includ-
ing K.S.’ father, who testified on cross-examination that he
suspected during the previous 4 years that Schmidt was touch-
ing K.S. inappropriately; that he had questioned K.S. repeat-
edly about this, including questioning in the presence of K.S.’
mother; and that K.S. had repeatedly responded, “‘No. Roger is
my friend.’” On cross-examination of K.S., Schmidt’s counsel
elicited testimony that K.S. had received bad touches from her
cousin, that K.S. had told M.C. about the cousin’s bad touches,
and that K.S. had responded negatively to certain question-
ing by her father about being touched by Schmidt. K.S. was
asked about inconsistent statements, including her deposition
testimony. From M.C., Schmidt elicited testimony that she had
known the difference between good and bad touches prior to a
school presentation on the topic in April 2006 and had known
STATe v. SCHMIDT 	747
Cite as 16 Neb. App. 741

the difference for quite some time prior to the presentation.
M.C. testified she did not tell her parents or teacher about what
Schmidt was doing prior to April 2006 and continued to go
over to Schmidt’s house and ask Schmidt to take her fishing
despite knowing that her parents and teacher would protect her
from Schmidt. M.C. was also questioned about prior inconsist-
ent statements and details of her allegations.
We also note that Schmidt’s counsel conducted a thor-
ough cross-examination of Katy Hilgenkamp, a licensed mental
health practitioner, who testified on direct examination about
the difficulties young children who have been sexually abused
have in disclosing that abuse. Schmidt’s counsel questioned
Hilgenkamp about whether children who had been supported by
adults when reporting prior sexual abuse would be more likely
to report subsequent instances of sexual abuse, and Hilgenkamp
testified, “If they have talked about it before and been sup-
ported and believed and not punished, I would think that would
make it easier for them to report again.”
At trial, prior to the presentation of evidence by the defense,
Schmidt made a motion asking the court to reconsider its rul-
ing on the State’s motion in limine and made an offer of proof
limited to the proposed testimony of K.S.’ parents and M.C.’s
mother. In response to Schmidt’s motion, the court stated:
All right. There is certainly a legitimate argument to be
made, as [Schmidt’s counsel] has ably been making. That
there’s relevancy to the matters that were the subject of
the State’s motion in limine. However, the Court con-
tinues to find that any relevancy is outweighed by the
lack of probative value, and the other matters in Rule
403. So the Court overrules the motion to reconsider
its ruling on the State’s motion in limine in light of . . .
Hilgenkamp’s testimony.
Schmidt’s counsel then proceeded to make his offer of proof
and represented that K.S.’ parents would testify that 3 weeks
before Thanksgiving 2001, K.S. stated her cousin had touched
her inappropriately, and that Schmidt had not touched her as
of that time. Schmidt’s counsel further represented that K.S.’
parents would testify that the case involving the cousin had
been prosecuted, that K.S. had been interviewed at a child
748 	16 NeBRASKA APPeLLATe RePORTS

advocacy center with respect to the cousin, that K.S. had been
informed about inappropriate touching, and that K.S. knew the
difference between a good touch and a bad touch. Schmidt’s
counsel represented that M.C.’s mother would testify that in
January 2002, there had been an investigation into whether the
mother’s former boyfriend had inappropriately touched M.C.,
and that the mother had talked with M.C. about appropriate and
inappropriate touching. Following Schmidt’s offer of proof, the
district court renewed its ruling on the State’s motion in limine
and excluded the evidence.
[12-16] Schmidt argues that his right of confrontation was
denied by the district court’s ruling. The right of a person
accused of a crime to confront the witnesses against him or her
is a fundamental right guaranteed by the 6th amendment to the
U.S. Constitution, as incorporated in the 14th amendment, as
well as by article I, § 11, of the Nebraska Constitution. State
v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006). The functional
purpose of the Confrontation Clause is to ensure the integrity of
the factfinding process through the provision of an opportunity
for effective cross-examination. Id. An accused’s constitutional
right of confrontation is violated when either (1) he or she is
absolutely prohibited from engaging in otherwise appropri-
ate cross-examination designed to show a prototypical form
of bias on the part of the witness, or (2) a reasonable jury
would have received a significantly different impression of
the witness’ credibility had counsel been permitted to pursue
his or her proposed line of cross-examination. Id. The right
of cross-examination is not unlimited. Id. The scope of cross-
examination of a witness rests largely in the discretion of the
trial court, and its ruling will be upheld on appeal unless there
is an abuse of discretion. Id.
A review of the trial testimony of K.S. and her parents
and M.C. and her mother clearly shows that Schmidt was not
absolutely prohibited from engaging in otherwise appropriate
cross-examination of the witnesses in question, and there is
nothing to suggest that a reasonable jury would have received
a significantly different impression of the witnesses’ credibility
had Schmidt’s counsel been permitted to further pursue his pro-
posed line of cross-examination. Accordingly, Schmidt’s right
STATe v. SCHMIDT 	749
Cite as 16 Neb. App. 741

of confrontation was not violated. Nor do we find an abuse of
discretion in the district court’s exclusion of the evidence on
the basis of its lack of probative value and the danger of confu-
sion of the issues. Schmidt’s assignment of error concerning the
court’s ruling on the State’s motion in limine is without merit.
Cross-Examination.
Schmidt asserts that the district court erred in sustaining the
State’s objection to certain cross-examination questioning of a
witness regarding an unfounded allegation. Schmidt does not
direct us to the point in the record where the court made the
ruling of which he complains, but a perusal of Schmidt’s cross-
examination of M.C. reveals the following exchange concern-
ing another child, “T.B.”:
[Schmidt’s counsel:] Did you tell [an interviewer] at
the Child Advocacy Center . . . that you would play cards
with [Schmidt] and [T.B.] and observe [Schmidt] touch
[T.B.’s] vagina?
[Prosecutor]: I’m going to object, Your Honor, on rele-
vancy and hearsay.
THe COURT: Sustained.
[Schmidt’s counsel]: Judge, I’m not trying to prove
[the truth of] the matter in statements that she made in
an interview with anyone. Statements, I think, are fair
game to talk with her about as to whether she made
those statements.
THe COURT: All right. I will ask counsel to approach.
(Discussion had off the record.)
THe COURT: All right. And the objection is sustained.
[17] Schmidt argues that his cross-examination of M.C.
was thwarted when the court sustained the State’s objection;
Schmidt contends, “Her allegation that she witnessed [Schmidt]
assault another child was unfounded. She may have well admit-
ted this at trial, but this question is unanswered.” Brief for
appellant at 16. Schmidt further argues that the question was
proper as it was relevant to bias, prejudice, and credibility. The
State argues that Schmidt has waived this assignment of error
because he did not make an offer of proof to establish what
M.C.’s testimony would have been had she been allowed to
750 	16 NeBRASKA APPeLLATe RePORTS

answer the question. error may not be predicated upon a rul-
ing of a trial court excluding testimony of a witness unless the
substance of the evidence to be offered by the testimony was
made known to the trial judge by offer or was apparent from
the context within which the questions were asked. State v.
Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).
Although Schmidt did not make an offer of proof during
the course of M.C.’s testimony, he did make an offer of proof
at a later point in the trial. Following R.S.’ testimony, a break
was taken and the jury was escorted out. At that time, the court
referred to the sidebar exchange that occurred during M.C.’s
testimony, stating that it had been agreed that Schmidt’s counsel
would be allowed to make a further offer of proof with respect
to M.C.’s testimony. At that time, Schmidt’s counsel represented
to the court that if M.C. were allowed to testify about state-
ments she made at the child advocacy center, she would testify
that she identified an occasion in which Schmidt, T.B., and she
were playing cards; that she told investigators that Schmidt
touched T.B. on her vagina; and that she saw this while she
was picking up a card she had dropped off the table. The court
noted the offer of proof and again sustained the State’s previous
hearsay and relevancy objections to the testimony.
[18,19] Hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. State v.
Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006), cert. denied
549 U.S. 1283, 127 S. Ct. 1815, 167 L. ed. 2d 326 (2007).
evidence is relevant when it has any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence. State v. Iromuanya, 272 Neb. 178,
719 N.W.2d 263 (2006), cert. denied 549 U.S. 1167, 127 S. Ct.
1129, 166 L. ed. 2d 893 (2007). The difficulty with Schmidt’s
offer of proof in this instance is that it does nothing to establish
whether the allegations regarding Schmidt’s actions toward T.B.
were unfounded. Despite his counsel’s assertion at trial that he
did not want to prove the truth of whether Schmidt actually
assaulted T.B., when reviewing Schmidt’s arguments on appeal,
it is clear that Schmidt wanted to prove that the allegations about
STATe v. SCHMIDT 	751
Cite as 16 Neb. App. 741

assault of T.B. were false and to accordingly attack the credibil-
ity of M.C.’s allegations about her own alleged assault. We note
that Schmidt was not charged in this case with assaulting T.B.
Clearly, the question of whether Schmidt assaulted another girl
on a particular occasion does little to make it more or less prob-
able that Schmidt assaulted M.C. on any number of other given
occasions. The district court properly excluded the evidence as
hearsay, and we find no abuse of discretion in the exclusion
of the evidence on the ground of relevancy. Nor do we find a
violation of Schmidt’s right of confrontation in this instance.
Schmidt’s second assignment of error is without merit.
Jury Instruction No. 14.
[20-22] Schmidt asserts that the district court erred in submit-
ting jury instruction No. 14. In an appeal based on a claim of an
erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant. State v.
Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007). Before an error
in the giving of instructions can be considered as a ground for
reversal of a conviction, it must be considered prejudicial to the
rights of the defendant. Id. Jury instructions must be read as a
whole, and if they fairly present the law so that the jury could
not be misled, there is no prejudicial error. Id.
Jury instruction No. 14 was given over Schmidt’s objection
and provided, “The testimony of a person who is the victim
of a sexual assault, as charged in this case, does not require
corroboration. It is for you to decide what weight to give the
testimony of [M.C., R.S., and K.S.]” Schmidt argues that this
instruction is confusing and misleading when read in conjunc-
tion with jury instructions Nos. 2(D) and 3(D)(6). Instruction
No. 2(D) provided, “In criminal prosecutions, the burden of
proof never shifts from the State to the defendant; hence a con-
viction can be had only when the jury is satisfied from all the
evidence of the defendant’s guilt beyond a reasonable doubt.”
Instruction No. 3(D) provided:
You are the sole judges of the credibility of the witnesses
and the weight to be given to their testimony. In determin-
ing this, you may consider . . . .
752 	16 NeBRASKA APPeLLATe RePORTS

. . . .
(6) [t]he extent to which the witness is corroborated, if
at all, by circumstances or by the testimony of other wit-
nesses you regard as credible.
Jury instruction No. 14 is a correct statement of Nebraska
law. Neb. Rev. Stat. § 29-2028 (Reissue 1995) provides, “The
testimony of a person who is a victim of a sexual assault as
defined in sections 28-319 to 28-320.01 shall not require cor-
roboration.” Schmidt agrees, but he urges that the instruction
should not have been given because it was confusing and
misleading when read in conjunction with the other instruc-
tions. Schmidt argues that the instruction suggested that the
jury should weigh the girls’ testimonial credibility without any
consideration of corroboration and that it further suggested that
the girls were victims of sexual assault. We disagree. When
read as a whole, the instructions fairly present the law and are
not misleading. The instructions, when taken together, advise
the jury that while corroboration of the victim’s testimony is
not required, corroboration, or the lack thereof, may be con-
sidered by the jury in determining the weight to be given to
the testimony. The jury clearly did not take the instructions
as direction that the girls were victims of the charged sexual
assaults, because it found Schmidt not guilty on two of the
seven counts. We find no prejudicial error in the giving of jury
instruction No. 14.
Statements to Law Enforcement.
Schmidt asserts that the district court erred in admitting
Schmidt’s statements to a police officer, and he argues that his
statements were rendered involuntary by the officer’s assur-
ances that Schmidt was not a child molester and that the inves-
tigation did not need to be in the newspaper.
At the hearing on Schmidt’s pretrial motion to suppress,
the court heard testimony from Sgt. Douglas Klaumann of
the Fairbury Police Department. Klaumann testified that on
April 27, 2006, he was investigating an allegation of a sexual
assault of a minor. At approximately 5 p.m., Klaumann tele-
phoned Schmidt at his residence and asked Schmidt to come
to the police department to discuss some allegations involving
STATe v. SCHMIDT 	753
Cite as 16 Neb. App. 741

Schmidt. Schmidt agreed to do so immediately and drove his
own vehicle to the station. Upon Schmidt’s arrival, he was
met by Klaumann and escorted to a room where Klaumann
began to interview Schmidt. Klaumann testified that at that
time, Schmidt was free to leave. Initially, Klaumann engaged
Schmidt in “small talk” before advising Schmidt that he needed
to speak with him about some allegations and reading Schmidt
his Miranda rights. Schmidt stated that he understood his
rights, and Klaumann began to question him about certain alle-
gations made by M.C. when she was interviewed at the child
advocacy center.
After about 30 minutes of denying any inappropriate touch-
ing, Schmidt admitted to inappropriately touching M.C. on
two different occasions in the area of her vagina on the exte-
rior of her clothing. At some point, Klaumann indicated to
Schmidt that he felt Schmidt was not being truthful. Schmidt
responded by blaming M.C. for the inappropriate touching
and commented, “‘If I touched [M.C., R.S., or K.S.], I didn’t
mean it.’” Schmidt expressed some concern to Klaumann about
the investigation’s becoming public knowledge. Specifically,
Schmidt expressed concern that the investigation was going to
be made public in the news media, and in response, Klaumann
advised Schmidt, “I don’t do that. I don’t call the newspaper
and give them [sic] this type of information.” Schmidt indi-
cated that he felt that Klaumann was labeling him as a child
molester, and Klaumann advised Schmidt that he was not doing
so. eventually, Schmidt began to admit touching M.C. a number
of times, and Klaumann made the decision to place Schmidt
under arrest. Shortly after concluding the first interrogation,
Klaumann interrogated Schmidt again. Klaumann reminded
Schmidt of his Miranda rights and prior waiver of them but
did not fully recite the rights advisory again. In the second
interview, Schmidt simply confirmed the statements he made
previously in the first interview. Schmidt was then arrested. A
recording of Schmidt’s statements was received into evidence at
the suppression hearing.
Before the district court and on appeal, Schmidt relied on
State v. Erks, 214 Neb. 302, 333 N.W.2d 776 (1983), a case in
which the Nebraska Supreme Court found no clear error in the
754 	16 NeBRASKA APPeLLATe RePORTS

trial court’s suppression of admissions made after a police offi-
cer promised the defendant to stifle publicity about his case. The
officer had also told the defendant that the police would protect
him and his family from embarrassment if possible.
In its October 18, 2006, order ruling on Schmidt’s motion to
suppress, the district court indicated that it had listened to the
recording of the interrogations in this case. The court noted that
although Schmidt was concerned about publicity, Klaumann
never promised that there would be no publicity. Klaumann
simply told Schmidt that Klaumann did not “put things in the
paper” and that as far as Klaumann was concerned, the mat-
ter “did not need to be in the paper.” The court determined
that Schmidt’s statements in the first and second interviews
by Klaumann on April 27 were not involuntary. The court
observed that Klaumann was careful not to make any promises
regarding publicity and found the case clearly distinguishable
from State v. Erks. The court found that the second interroga-
tion carried no taint from the first interrogation and was merely
a recapitulation of the previous voluntary statements. The court
overruled Schmidt’s motion as to the statements stemming from
the two interrogations on April 27.
[23-26] In making the determination of whether a statement is
voluntary, a totality of the circumstances test is applied, and the
determination reached by the trial court will not be disturbed on
appeal unless clearly wrong. State v. McPherson, 266 Neb. 734,
668 N.W.2d 504 (2003). Generally, a defendant’s statement is
inadmissible only if the totality of the circumstances shows that
the police offered the defendant a benefit in exchange for the
statement. State v. Ray, 241 Neb. 551, 489 N.W.2d 558 (1992).
If a benefit is offered in exchange for testimony, and the offer
is definite, then a confession is involuntary and must be sup-
pressed. Id. Mere deception will not render a statement involun-
tary or unreliable; the test for determining the admissibility of a
statement obtained by police deception is whether that deception
produced a false or untrustworthy confession or statement. State
v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). We find noth-
ing in the record to suggest that Klaumann offered Schmidt a
definite benefit in exchange for his statements or any indication
that any deception on the part of Klaumann produced false or
STATe v. SCHMIDT 	755
Cite as 16 Neb. App. 741

untrustworthy statements from Schmidt. The district court’s rul-
ing on Schmidt’s motion to suppress is not clearly erroneous.
CONCLUSION
The district court did not abuse its discretion in excluding
the evidence referenced in the State’s motion in limine, and
the ruling did not violate Schmidt’s right of confrontation.
The court properly sustained the State’s objection to certain
cross-examination of M.C. The court did not err in giving jury
instruction No. 14. The court’s ruling on Schmidt’s motion to
suppress was not clearly erroneous.
affIrMeD.
C assel, Judge, concurring.
I write separately only to emphasize that, in my opinion, a
jury instruction such as instruction No. 14 should not be rou-
tinely given. Counsel for the State forthrightly conceded at oral
argument that it would not have been error for the trial judge
to refuse the instruction. An examination of legal standards
for giving or refusing instructions, in light of the history of
Neb. Rev. Stat. § 29-2028 (Reissue 1995), reveals why, absent
unusual circumstances, a judge should not accede to a request
for such instruction.
At common law, the testimony of the prosecutrix in the trial
of all offenses against the chastity of women was alone suf-
ficient to support a conviction and no corroborating evidence
or circumstances were necessary. State v. Fisher, 190 Neb. 742,
212 N.W.2d 568 (1973). See, also, 75 C.J.S. Rape § 94 (2002).
Nebraska initially followed the common-law rule. In Garrison
v. The People, 6 Neb. 274 (1877), the Nebraska Supreme Court
stated that the injured party in such case was a competent wit-
ness, but that her credibility must be left to the jury.
In Mathews v. State, 19 Neb. 330, 27 N.W. 234 (1886), the
Nebraska Supreme Court created a rule requiring corroboration,
thereby rejecting a verdict sustained solely by the testimony of
the prosecuting witness. The court quoted Sir Matthew Hale’s
statement that rape “‘is an accusation easily to be made and
hard to be proved, and harder to be defended [against] by the
party accused, though never so innocent.’” Id. at 335, 27 N.W.
at 236. The court also recognized:
756 	16 NeBRASKA APPeLLATe RePORTS

At common law the accused was not permitted to tes-
tify in his own behalf. However false or malicious the
charge might be his lips were sealed, and if the prosecutrix
testified positively to the facts constituting the offense,
and there was no evidence to the contrary, the courts held
the evidence sufficient.
Id. at 337, 27 N.W. at 237. Thus, the rule of corroboration was
judicially established.
Such rules of corroboration increasingly generated criti-
cism. e.g., Note, The Rape Corroboration Requirement: Repeal
Not Reform, 81 Yale L.J. 1365 (1972). In 1973, the Nebraska
Supreme Court recognized that Nebraska was “in a small minor-
ity of states which have adopted an unqualified corroboration
rule by judicial decision.” State v. Fisher, 190 Neb. at 746, 212
N.W.2d at 571. Nonetheless, even after the adoption of a new
criminal code in 1977, Nebraska adhered to the rule. Finally,
in 1986, while a majority of the Nebraska Supreme Court
continued to recognize the rule, three justices opined that the
“outdated and discriminatory rule of required corroboration
of a victim’s testimony regarding a sexual assault should be
eliminated from the Nebraska criminal justice system.” State v.
Daniels, 222 Neb. 850, 861-62, 388 N.W.2d 446, 454 (1986)
(Shanahan, J., concurring; Krivosha, C.J., and White, J., join).
The Legislature responded.
In 1989, the Legislature adopted the statute now codified
at § 29-2028. See 1989 Neb. Laws, L.B. 443. As the court’s
opinion in the instant case recognizes, this statute declares that
“[t]he testimony of a person who is a victim of a sexual assault
. . . shall not require corroboration.” § 29-2028. The senator who
introduced the bill explained to the Judiciary Committee:
LB 443 changes the corroboration rule. Corroboration is a
judicially created evidentiary rule that establishes special
requirements for sexual assault prosecutions. Specifically,
corroboration is additional testimony of [sic] evidence
beyond the testimony of a victim. Without corrobora-
tion, a conviction for a sexual assault cannot be upheld in
Nebraska. . . . Nebraska is the only state that has retained
the corroboration rule for all cases of sexual assault. .
. . Corroboration is not required for any other criminal
STATe v. SCHMIDT 	757
Cite as 16 Neb. App. 741

testimony in Nebraska. . . . The continued existence of
the corroboration rule, therefore, does little to protect an
innocent defendant, while perpetuating an insulting stereo-
type of women victims of sexual assault. . . . The Pages
have passed out a copy of [Justice] Shanahan’s concurring
opinion in the Daniels case . . . . In this opinion, [Justice]
Shanahan argues for the repeal of the corroboration rule.
Judiciary Committee Hearing, 91st Leg., 1st Sess. 33-34 (Feb.
1, 1989). In State v. Williamson, 235 Neb. 960, 458 N.W.2d 236
(1990), the Nebraska Supreme Court acknowledged the legisla-
tive demise of the judicially created rule.
Two important and related lessons derive from this his-
tory. First, because the corroboration rule had been judicially
adopted, there was no prior statute for the Legislature to simply
amend or repeal. Thus, elimination of the rule required affirma-
tive legislation. Second, by enacting the statute, the Legislature
placed sexual assault prosecutions on equal footing with those
of virtually every other criminal offense—no corroboration
is required. In other words, in all cases, the jury evaluates
the testimony of a victim just as it does the testimony of any
other witness.
The legal standards applicable to giving or refusing instruc-
tions confirm that the instruction is superfluous. This court
has recognized that a slightly different question is presented
when the claim is that an instruction should have been given
than when the claim is that an instruction should not have
been given. Suiter v. Epperson, 6 Neb. App. 83, 571 N.W.2d
92 (1997). Despite such difference, I find significance in the
State’s concession at oral argument.
In reviewing a court’s decision to give an instruction, as this
court correctly recognizes, all the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial error
necessitating reversal. See State v. Gutierrez, 272 Neb. 995, 726
N.W.2d 542 (2007), cert. denied sub nom. Sommer v. Nebraska,
552 U.S. 876, 128 S. Ct. 186, 169 L. ed. 2d 126. On the other
hand, to establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
758 	16 NeBRASKA APPeLLATe RePORTS

that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction. State v. Hessler, 274 Neb. 478,
741 N.W.2d 406 (2007). In both instances, the instruction must
correctly state the law and must be warranted by the evidence.
The difference is that as to an instruction given, the question is
whether the instructions as a whole thereby became mislead-
ing, while as to an instruction refused, we examine whether the
appellant was prejudiced by the failure to give the instruction.
This inquiry frequently focuses upon whether the substance of
the requested instruction was covered in the instructions given.
See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
This court properly rejects Schmidt’s argument that the
instruction was misleading. Particularly because of the second
sentence of instruction No. 14 (“[i]t is for you to decide what
weight to give the testimony . . .”), when that instruction is read
together with the other instructions, it becomes apparent that
the jury is to evaluate a victim’s testimony in the same manner
as it does the testimony of other witnesses. Such testimony may
or may not have corroboration, and the jury may consider the
presence or absence of such corroboration in determining the
weight to be given to the testimony.
The State’s concession at oral argument confirms that it would
not have been prejudiced had the court refused the instruction.
Because the current law treats the testimony of a victim the
same as that of any other witness, the general instruction on
credibility of witnesses adequately covers the topic. In instruc-
tion No. 14, when one substitutes for the word “victim” the
word “witness,” “bystander,” or “investigator,” the redundancy
of the instruction becomes manifest.
Whenever an applicable instruction may be taken from the
Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case. State
v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). The gen-
eral instruction regarding witness credibility was adequate to
cover the situation in the case before us. Giving the redundant
instruction introduced an unnecessary risk of undue emphasis
of a part of the evidence. See State v. Nesbitt, 264 Neb. 612,
STATe v. SCHMIDT 	759
Cite as 16 Neb. App. 741

650 N.W.2d 766 (2002). There was no reason to give the
instruction, and unless special circumstances in a particular
case require such instruction, I respectfully suggest that a trial
judge should not do so.
teD D e B oer , appellee , v . neBrasKa D epartMent
of M otor vehICles , appellant .
751 N.W.2d 651
Filed June 3, 2008. 	No. A-07-874.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence, and
is not arbitrary, capricious, or unreasonable.
3. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing
final administrative orders under the Administrative Procedure Act, the district
court functions not as a trial court but as an intermediate court of appeals.
4. Administrative Law: Appeal and Error. Pursuant to Neb. Rev. Stat. § 84-917(5)(a)
(Cum. Supp. 2006) of the Administrative Procedure Act, the district court reviews
an agency decision de novo on the record of the agency.
5. ____: ____. In a true de novo review, the district court’s decision is to be made
independently of the agency’s prior disposition and the district court is not required
to give deference to the findings of fact and the decision of the agency hear-
ing officer.
6. Administrative Law: Evidence: Words and Phrases. For purposes of reviewing
an order of an administrative agency, competent evidence means evidence which
tends to establish the fact in issue.
Appeal from the District Court for Hall County: teresa K.
luther, Judge. Affirmed.
Jon Bruning, Attorney General, Andee G. Penn, and edward
G. Vierk for appellant.
No appearance for appellee.
I nBoDy, Chief Judge, and M oore and C assel, Judges.
760 	16 NeBRASKA APPeLLATe RePORTS