State v. Schmidt

E xcEssivE sEntEncE
[7] Sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was
an abuse of judicial discretion. State v. Carlson, 260 Neb.
815, 619 N.W.2d 832 (2000). When imposing a sentence, a
sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved
in the commission of the crime. State v. Thurman, 273 Neb.
518, 730 N.W.2d 805 (2007). Presentence reports are required
only for defendants convicted of felonies. Neb. Rev. Stat.
§ 29-2261 (Cum. Supp. 2006).
Williams 	pled 	guilty 	to 	domestic 	assault 	in 	the 	third
degree, which is a Class I misdemeanor under Neb. Rev. Stat.
§ 28-323(4) (Cum. Supp. 2006). Class I misdemeanors are
punishable by up to 1 year’s imprisonment, a $1,000 fine, or
both. Neb. Rev. Stat. § 28-106 (Cum. Supp. 2006). The trial
court sentenced Williams to 90 days’ incarceration, which is
well within the statutory limits. We find that this sentence is
not excessive and that the court did not abuse its discretion.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of
the district court.
A ffirmEd .
stAtE of nEbrAskA, AppEllEE, v .
rogEr k. schmidt , sr ., AppEllAnt .
757 N.W.2d 291
Filed November 7, 2008. 	No. S-07-556.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a con-
clusion independent of the determination reached by the trial court.
2. ____: ____. 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
STATe v. SChmIdT 	723
Cite as 276 Neb. 723
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

issues supported by the pleadings and the evidence, there is no prejudicial error
necessitating reversal.
3. 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.
4. Trial: Witnesses: Testimony: Appeal and Error. When the object of cross-
examination is to collaterally ascertain the accuracy or credibility of a witness,
some latitude should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused, its exercise is not
reversible error.
5. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
6. 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
prototypical form of bias on the part of a 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.
7. Constitutional Law: Trial: Witnesses. Although the main and essential purpose
of confrontation is the opportunity of cross-examination, trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based upon concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interroga-
tion that is repetitive or only marginally relevant.
8. 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.
9. Trial: Evidence: Appeal and Error. Because overruling a motion in limine is
not a final ruling on the admissibility of evidence and therefore does not present a
question for appellate review, a question concerning the admissibility of evidence
which is the subject of a motion in limine is raised and preserved for appellate
review by an appropriate objection during trial.
Petition for further review from the Court of Appeals,
siEvErs , moorE, and cAssEl, Judges, on appeal thereto from
the district Court for Jefferson County, pAul W. korslund,
Judge. Judgment of Court of Appeals affirmed.
James 	R. 	mowbray 	and 	Kelly 	S. 	Breen, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and James d. Smith for
appellee.
724 	276 NeBRASKA RePORTS

hEAvicAn , 	c.J., 	W right , 	connolly , 	gErrArd , 	stEphAn ,
mccormAck , and millEr -lErmAn , JJ.
stEphAn , J.
Following a jury trial in the district court for Jefferson
County, Roger K. Schmidt, Sr., was convicted of one count of
first degree sexual assault on a child and four counts of sexual
assault of a child. The Nebraska Court of Appeals affirmed his
convictions,1 and we granted his petition for further review.
We now affirm the judgment of the Court of Appeals affirming
Schmidt’s convictions and sentences.
I. BACKGROUNd
1. district court procEEdings
Two of the three alleged female victims in this case were
m.C., who was 10 years old at the time of trial, and K.S.,
who was 9. Schmidt’s son lives with m.C.’s mother, and m.C.
generally considered Schmidt to be her grandfather. K.S. lived
across the street from Schmidt, considered him a friend, and
frequently visited his home. Schmidt was charged with multi-
ple acts of sexual assault against m.C. and K.S. during a period
from January 1, 2001, to march 31, 2006. m.C. first reported
the assaults to a school counselor on April 25, 2006, after a
school program entitled “Good Touch Bad-Touch.” m.C. sub-
sequently reported that K.S. told her she had also been touched
inappropriately by Schmidt.
Prior to trial, the State filed a motion in limine requesting
that defense counsel be prohibited from commenting upon
or cross-examining m.C. and K.S. regarding prior allega-
tions of sexual assault directed at persons other than Schmidt.
The State’s position was that such evidence was irrelevant.
Schmidt’s counsel argued that the evidence was relevant to
show that m.C. and K.S. were aware of the significance of
“bad touch” prior to the alleged incidents involving Schmidt,
but nevertheless did not immediately report them. he made
an offer of proof, consisting of the depositions of m.C., her
mother, and the parents of K.S., which established that both
1 State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008).
STATe v. SChmIdT 	725
Cite as 276 Neb. 723

minors had been interviewed regarding prior allegations or
suspicion of sexual abuse by persons other than Schmidt.
Schmidt’s counsel argued that he should be permitted to cross-
examine m.C. and K.S. regarding these matters. The district
court summarized Schmidt’s argument as follows:
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 examina-
tion of the parents and then be able to ask 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 responded affirmatively.
On direct examination at trial, m.C. testified that for a period
of 3 to 4 years before she reported him, Schmidt had repeatedly
subjected her to sexual touching, including digital penetration.
On cross-examination, Schmidt’s counsel elicited testimony
that m.C. knew the difference between “good touch” and “bad
touch” for some time prior to reporting Schmidt. m.C. also tes-
tified that she did not tell anyone of Schmidt’s conduct before
April 2006, despite knowing that her parents and her teacher
could protect her.
Also on cross-examination, Schmidt’s counsel asked m.C.
if she told a counselor that she had observed Schmidt sexually
touching another minor, T.B. The State objected on grounds
of relevancy and hearsay, and the district court sustained the
objection. Later, out of the presence of the jury, Schmidt’s
counsel made an offer of proof that if allowed to answer his
question, m.C. would have admitted that she had made the
allegation regarding Schmidt and T.B.
K.S. testified that Schmidt had been touching her since she
was 4 years old and that he had touched or rubbed between
her legs on numerous occasions. K.S. first told m.C. about the
touching when K.S. was 8, but told no one else at that time
because she was afraid. K.S. testified on cross-examination
that she had previously been touched inappropriately by a
cousin and that she told m.C. about this. She also testified that
when her parents inquired, she initially denied being touched
by Schmidt.
726 	276 NeBRASKA RePORTS

douglas 	Klaumann, 	a 	police 	sergeant 	who 	investigated
m.C.’s complaint, testified for the State. On cross-examination,
Schmidt’s counsel began to ask Klaumann, “did [m.C.] report
any other child that she witnessed . . . .” The State objected on
grounds of relevance and hearsay, and the objection was sus-
tained. Out of the presence of the jury, Schmidt’s counsel made
an offer of proof that if allowed to testify, Klaumann would
state that m.C. reported that on an occasion when she and T.B.
were playing cards with Schmidt at his home, “‘she thought
she observed . . . Schmidt touching [T.B.] on the area of her
vagina on the outside of her clothes.’” The court sustained the
State’s relevancy and hearsay objections to the offer of proof.
Schmidt’s counsel then made a second offer of proof that if
permitted to testify, Klaumann would testify that he inter-
viewed T.B. and her sister and that both denied being touched
in a sexual manner by Schmidt. The court again sustained the
State’s relevancy and hearsay objection.
After the State had rested and the court had overruled
Schmidt’s motion for a directed verdict, Schmidt’s counsel
requested that the court reconsider its ruling on the State’s
motion in limine prohibiting defense counsel from comment-
ing upon or cross-examining m.C. and K.S. regarding prior
allegations of sexual abuse by persons other than Schmidt.
The court overruled this request for the reasons stated in its
ruling on the motion in limine. Schmidt’s counsel then made
several offers of proof similar to those made at the time of
the original hearing on the State’s motion in limine. he stated
that if permitted to testify, the parents of K.S. would testify
that she had reported to them approximately 4 years earlier
that she had been inappropriately touched by a cousin, who
was subsequently prosecuted, and that at the time of this inci-
dent, K.S. understood the difference between appropriate and
inappropriate touching.
Schmidt’s counsel made a further offer of proof that if per-
mitted to testify, m.C.’s mother would state that in 2002, there
had been an investigation into whether her former boyfriend
had abused m.C. and that the mother had talked to m.C. at
that time about appropriate and inappropriate touching. At
STATe v. SChmIdT 	727
Cite as 276 Neb. 723

that time, m.C. was 51⁄2 years old, and she had not actually
reported any abuse prior to the investigation. m.C. was inter-
viewed, but no charges were brought. The court reaffirmed its
ruling on the motion in limine excluding the matters stated in
both offers of proof.
At an instruction conference, Schmidt’s counsel objected to
proposed jury instruction No. 14, which stated: “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. and K.S.].”
Schmidt’s counsel acknowledged that the instruction was a cor-
rect statement of the law, but argued that it was confusing and
misleading when considered together with the general witness
credibility instruction which was also proposed. The objection
was overruled, and instruction No. 14 was given, as was the
general witness credibility instruction.
The jury returned guilty verdicts on five of the seven counts
charged. Three of these counts involved m.C., one involved
K.S., and the fifth involved a third victim. The jury returned
not guilty verdicts on two counts, both of which involved
K.S. The district court entered judgment on the verdicts and
sentenced Schmidt to five consecutive terms of imprisonment.
Schmidt appealed.
2. court of A ppEAls
In his appeal, Schmidt assigned that the district court erred
in (1) sustaining the State’s motion in limine, (2) sustaining the
State’s objection to cross-examination of m.C. regarding her
reported observation of Schmidt’s touching T.B., (3) submit-
ting jury instruction No. 14, and (4) admitting statements made
by Schmidt to a police officer. The Court of Appeals found no
merit in any of these assignments.
The court held that Schmidt’s right of confrontation was
not violated by either the ruling on the motion in limine and
resulting exclusion of evidence or the restriction on cross-
examination of m.C. with respect to her report that Schmidt
improperly touched T.B. With respect to the alleged incident
involving T.B., the Court of Appeals noted that Schmidt’s offer
of proof did not “establish whether the allegations regarding
728 	276 NeBRASKA RePORTS

Schmidt’s actions toward T.B. were unfounded.”2 The court
found no error in the admission of certain incriminating state-
ments which Schmidt gave to police and no error in the giv-
ing of jury instruction No. 14. In a concurring opinion, one
member of the court expressed his opinion that while jury
instruction No. 14 was a correct statement of the law and was
not misleading, it need not have been given, because the gen-
eral instruction regarding witness credibility was adequate.3
The concurring judge concluded that in the absence of special
circumstances, trial judges should not specifically instruct the
jury that the testimony of an alleged sexual assault victim does
not require corroboration.
II. ASSIGNmeNTS OF eRROR
In his petition for further review, Schmidt assigns, restated,
that the Court of Appeals erred in affirming his convictions
because (1) jury instruction No. 14 was confusing, misleading,
and prejudicial to his defense; (2) the trial court denied his
right to confront and cross-examine victim m.C. to demon-
strate bias, prejudice, and lack of credibility; and (3) the trial
court denied his right to compulsory process and impaired his
right to effective cross-examination of victims m.C. and K.S.
by granting the State’s motion in limine.
III. ANALYSIS
1. J ury instruction no . 14
(a) Standard of Review
[1,2] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court.4 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
2 Id. at 751, 750 N.W.2d at 401.
3 State v. Schmidt, supra note 1 (Cassel, Judge, concurring).
4 State v. Moore, ante p. 1, 751 N.W.2d 631 (2008); State v. Gutierrez, 272
Neb. 995, 726 N.W.2d 542 (2007).
STATe v. SChmIdT 	729
Cite as 276 Neb. 723

pleadings and the evidence, there is no prejudicial error neces-
sitating reversal.5
(b) disposition
It is undisputed that the challenged jury instruction is a
correct statement of the law as set forth in Neb. Rev. Stat.
§ 29-2028 (Cum. Supp. 2006). We agree with the Court of
Appeals that the giving of the instruction in this case was not
prejudicial and did not constitute reversible error, because
when read as a whole, the jury instructions fairly presented
the law and were not misleading. We also agree with the con-
currence that while it was not prejudicial, this instruction was
redundant and unnecessary, and that in the absence of special
circumstances in a particular case, an instruction similar to
instruction No. 14 should not be given.
2. cross -E xAminAtion of m.c.
(a) Standard of Review
[3] 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.6
[4] When the object of cross-examination is to collaterally
ascertain the accuracy or credibility of a witness, some latitude
should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused,
its exercise is not reversible error.7
(b) disposition
[5] Schmidt argues that he was denied the right to cross-
examine m.C. regarding what he characterizes as an “unfounded
allegation” to authorities that m.C. had witnessed Schmidt
touch the vaginal area of another minor, T.B.8 he contends that
5 State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008); State v. Gutierrez,
supra note 4; State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
6 State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
7 State v. Schreiner, ante p. 393, 754 N.W.2d 742 (2008).
8 Brief for appellant in support of petition for further review at 7.
730 	276 NeBRASKA RePORTS

the Court of Appeals erroneously dismissed this argument by
noting that he had not made an offer of proof to establish that
the alleged report regarding Schmidt and T.B. was unfounded.
Schmidt argues that he made a record on this point through
the second of two offers of proof made during Klaumann’s
testimony, indicating that if permitted to testify, Klaumann
would state that he interviewed T.B. and that she told him
Schmidt had not touched her. That offer of proof was made in
response to a ruling sustaining the State’s relevance and hear-
say objections to a question asking Klaumann whether m.C.
had reported an incident involving Schmidt and T.B. Schmidt
did not assign error with respect to this ruling. An alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by an
appellate court.9
[6,7] Assuming without deciding that we could consider the
offers of proof made during Klaumann’s testimony in deter-
mining whether the district court erred in sustaining objections
to Schmidt’s subsequent cross-examination of m.C., we con-
clude there was no reversible error. 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 prototypical form of bias
on the part of a 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.10 Although the main and
essential purpose of confrontation is the opportunity of cross-
examination,11 trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based upon concerns about, among
9 State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007); State v. Kuehn,
273 Neb. 219, 728 N.W.2d 589 (2007).
10 State v. Poe, ante p. 258, 754 N.W.2d 393 (2008); State v. Stark, 272 Neb.
89, 718 N.W.2d 509 (2006); State v. Privat, 251 Neb. 233, 556 N.W.2d 29
(1996).
11 Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. ed. 2d 347 (1974);
State v. Schreiner, supra note 7.
STATe v. SChmIdT 	731
Cite as 276 Neb. 723

other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only
marginally relevant.12
Whether or not Schmidt improperly touched T.B. had no
direct bearing on the essential elements of this case, and
the attempted cross-examination of m.C. on this point was
not directed at a prototypical form of bias. Schmidt’s coun-
sel cross-examined m.C. extensively on issues relating to
her general credibility, securing her admission that although
she had understood the difference between appropriate and
inappropriate touching for some time, she had not reported
Schmidt’s conduct until long after she said that it began. From
our review of the record, we conclude that a reasonable jury
would not have received a significantly different impression
of m.C.’s credibility had Schmidt’s counsel been permitted
to pursue cross-examination on the collateral matter of her
reported observations of Schmidt and T.B. We agree with the
Court of Appeals that this restriction on cross-examination did
not violate Schmidt’s right of confrontation.
3. motion in liminE
(a) Standard of Review
[8] The exercise of judicial discretion is implicit in deter-
minations 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.13
(b) disposition
[9] Because overruling a motion in limine is not a final rul-
ing on the admissibility of evidence and therefore does not
present a question for appellate review, a question concern-
ing the admissibility of evidence which is the subject of a
motion in limine is raised and preserved for appellate review
12 See State v. Schreiner, supra note 7.
13 State v. Gutierrez, supra note 4; State v. Robinson, 272 Neb. 582, 724
N.W.2d 35 (2006).
732 	276 NeBRASKA RePORTS

by an appropriate objection during trial.14 during his cross-
examination of m.C., Schmidt’s counsel did not ask specific
questions pertaining to possible prior abuse by other persons,
but he did elicit m.C.’s admission that she understood the dif-
ference between appropriate and inappropriate touching by
an adult long before she reported abuse by Schmidt. during
his cross-examination of K.S., Schmidt’s counsel was able to
elicit her testimony regarding prior inappropriate touching by
a cousin, over the State’s relevance objection. Thus, Schmidt’s
counsel was able to confront m.C. and K.S. with certain evi-
dence which was the subject of the State’s motion in limine.
Based upon the principles discussed above, we agree with
the reasoning and conclusion of the Court of Appeals that the
district court’s ruling on the State’s motion in limine, and its
subsequent reaffirmance of that ruling in response to evidence
offered by Schmidt in his case in chief, did not deprive Schmidt
of his constitutional right of confrontation.
IV. CONCLUSION
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals affirming the convictions and sen-
tences entered by the district court.
A ffirmEd .
14 State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v.
Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
dAvid v. chEbAtoris , spEciAl A dministrAtor of thE
E stAtE of shAron l. moyEr , dEcEAsEd , AppEllAnt ,
v . J ohn brAdlEy moyEr Et Al ., AppEllEEs .
757 N.W.2d 212
Filed November 7, 2008. 	No. S-07-892.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
CheBATORIS v. mOYeR 	733
Cite as 276 Neb. 733