State v. Chavez
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Nebraska Advance Sheets
state v. chavez
Cite as 281 Neb. 99
99
State of Nebraska, appellee, v.
John J. Chavez, appellant.
___N.W.2d___
Filed February 4, 2011. No. S-10-270.
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 determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
4. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
5. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence.
7. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), prohibits the admission of other bad acts evidence for the purpose of demonstrating a person’s propensity to act in a certain manner. But
evidence of other crimes which is relevant for a purpose other than to show the
actor’s propensity is admissible under rule 404(2).
8. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” relevance, which means
its relevance does not depend upon its tendency to show propensity.
9. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analysis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008),
considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
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10. Verdicts: Juries: Appeal and Error. In a harmless error review, an appellate
court looks at the evidence upon which the jury rested its verdict; the inquiry is
not whether in a trial that occurred without the error a guilty verdict would surely
have been rendered, but, rather, whether the guilty verdict rendered in the trial
was surely unattributable to the error.
11. Witnesses: Juries: Appeal and Error. The credibility and weight of witness
testimony are for the jury to determine, and witness credibility is not to be
r
eassessed on appellate review.
Appeal from the District Court for Scotts Bluff County:
R andall L. Lippstreu, Judge. Affirmed.
Richard L. DeForge, Deputy Scotts Bluff County Public
Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan,
McCormack, and Miller-Lerman, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
John J. Chavez (Chavez) appeals his conviction for intentional child abuse resulting in the death of his daughter. He
claims that the district court for Scotts Bluff County erred
when it allowed evidence of prior injuries to the victim into
evidence and when it overruled his motion for new trial. He
also claims that there was not sufficient evidence to support
his conviction. Because we determine there was no reversible
error, we affirm.
II. STATEMENT OF FACTS
Aubrey Chavez (Aubrey), born December 24, 2008, was the
daughter of Chavez and Tammy Rood. Aubrey was born prematurely; she was not released from the hospital until January
14, 2009, but she was healthy and doing well when she was
released. On the morning of April 20, Rood discovered that
Aubrey was not breathing. Rood attempted to revive Aubrey
and summoned an ambulance. Aubrey was taken to a hospital,
where she was pronounced dead.
Later in the day on April 20, 2009, both Chavez and Rood
were interviewed separately by Scottsbluff police detective
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Cite as 281 Neb. 99
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Robert Rader. Chavez initially told Rader that he had not done
anything to harm Aubrey. Later, Chavez admitted that he had
shaken Aubrey once and possibly twice in order to calm her
down because she was crying, but stated that the shaking was
gentle and that he had no intention of harming her and did not
think the shaking had caused her any harm.
Chavez was arrested and charged with knowing and intentional child abuse resulting in death, a Class IB felony under
Neb. Rev. Stat. § 28-707(6) (Reissue 2008). In the same
information, Chavez was charged with possession of methamphetamine, possession of drug paraphernalia, and possession
of marijuana, 1 ounce or less. The district court for Scotts
Bluff County sustained Chavez’ motion to sever the possession
charges from the child abuse charge. Pursuant to a plea agreement, Chavez pled no contest to possession of methamphetamine in exchange for the State’s dismissal of the other two
possession charges and the State’s agreement not to use the
plea or evidence of drug possession for impeachment purposes
in the child abuse trial.
Prior to trial on the child abuse charge, the State filed a
motion and notice of its intent to present evidence pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue
2008), which relates generally to the admission of evidence
of other crimes, wrongs, or acts. The State noted its intent to
present evidence of injuries inflicted upon Aubrey prior to the
date of her death. The State asserted that it would offer such
evidence for the purpose of proving intent or the absence of
mistake or accident. Following a hearing, the district court
concluded that “[e]vidence that Aubrey was a battered child
would be helpful to the jurors on the issues of intent and the
absence of mistake or accident” and that the testimony of Drs.
Peter Schilke and Timo Quickert would be relevant to such
issues. The court further concluded that evidence that Chavez
had caused a bruise to Aubrey’s forehead in March 2009 was
more probative than unfairly prejudicial or confusing. In the
same order, the court sustained Chavez’ motion in limine
regarding evidence of his prior convictions or prior criminal
investigations but overruled the portion of Chavez’ motion in
limine which sought to exclude evidence of Aubrey’s autopsy
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p
hotographs and evidence of injuries she suffered prior to
April 20, 2009.
Schilke performed an autopsy on Aubrey on April 21, 2009,
and testified at trial. Various objections to the testimony were
overruled. Schilke opined to a reasonable degree of medical
certainty that the cause of Aubrey’s death was a blunt force
head injury consistent with shaking and impact occurring
within a couple of hours of her being found not breathing.
The autopsy also revealed numerous remote injuries, including rib fractures; a bruise to the scalp; hemorrhaging of the
brain, optic nerve, and retina; a break of the left arm; and other
remote injuries to the brain. Schilke opined that the remote
injuries were consistent with inflicted injuries extending over a
number of weeks.
Regarding the specifics of the autopsy, Schilke noted that,
other than the obvious broken arm, there were not any other
obvious external injuries to Aubrey’s body. Aubrey’s chest
examination revealed 11 old rib fractures. Schilke stated that
ribs three through nine on the right side were fractured. The old
fractures were identifiable because fractured bone, in repairing
itself, leaves a callus, while normal bone is smooth. There was
also recent hemorrhaging in the chest wall on the right side
near ribs four through seven and on the left side near rib seven.
Hemorrhaging was present in the back near the spine.
Schilke testified that he observed a bruise on Aubrey’s
forehead. The bruise appeared to be recent. Schilke stated
that Aubrey showed acute, or recent, subdural hemorrhaging
on the top of her head on both the right and left sides of her
brain. She also had acute as well as older hemorrhages in the
subarachnoid layer covering her brain. In the brain itself, she
displayed both acute and older injuries. Aubrey’s eyes showed
acute hemorrhaging of the retina and optic nerve.
Schilke explained that a shearing injury results from a type
of force applied to the brain, as in shaking a baby, which tears
the connective tissue in the brain and that other signs of this
force are subdural and subarachnoid hemorrhaging. Schilke
stated to a reasonable degree of medical certainty that Aubrey’s
cause of death was “blunt force head injuries.” Schilke also
opined to a reasonable degree of medical certainty that Aubrey
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did not have skull fractures and that the injuries to her brain
were caused by a sudden change in force which caused tearing in the brain. Aubrey’s acute injuries were consistent with
the timeframe of 6 to 8:45 a.m. on April 20, 2009, when she
was found not breathing. The trial court instructed the jury
as to the limited purpose of the evidence regarding Aubrey’s
prior injuries.
Quickert, a radiologist, reviewed x rays and CT scans taken
of Aubrey and testified at trial. Quickert stated that he found
evidence of rib fractures in differing stages of healing that were
weeks to months old, additional rib fractures that were hours to
days old, a right wrist fracture that was weeks to months old, a
left thigh fracture, and shearing and other trauma injuries to the
brain that were both recent and more remote in time. Quickert
opined to a reasonable degree of medical certainty that the
injuries to Aubrey’s brain were consistent with “shaken baby
syndrome” or a traumatic shearing injury and that her more
remote injuries were consistent with recurring trauma and “battered child syndrome.”
At trial, the court overruled Chavez’ objections to the receipt
of evidence regarding injuries inflicted on Aubrey prior to April
20, 2009, and objections related to the form and content of the
findings and opinions of Schilke and Quickert. With regard to
those doctors’ testimony, the court gave limiting instructions to
the effect that evidence of injuries to Aubrey prior to the date
of her death was received for the limited purpose of helping the
jury decide issues of intent and absence of mistake or accident
and that the jury must consider the evidence for only those
limited purposes and for no other. The court overruled Chavez’
objections to certain of Schilke’s opinions on the basis that the
opinions were not stated with a sufficient degree of certainty or
specificity to support an expert opinion.
The State presented testimony of other witnesses, including
Rader, who testified regarding his investigation of Aubrey’s
death. In connection with Rader’s testimony, the court admitted into evidence and played for the jury a video recording of
Rader’s interview with Chavez on April 20, 2009, in which
Chavez admitted shaking Aubrey once or twice but asserted
that the shaking was gentle.
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Rood testified that Chavez was the father of two of her children—Aubrey and an older brother. Rood’s oldest son had a different father. At the time of Aubrey’s death, Rood and Chavez
lived together with the three children. Aubrey was born prematurely on December 24, 2008, and stayed in the hospital for 3
weeks after her birth. Rood stayed at home to care for Aubrey
at first but returned to work on February 10, 2009. Aubrey was
generally cared for by Rood, Chavez, or Rood’s mother.
Over Chavez’ objection, Rood testified that one time prior
to April 20, 2009, she returned home from working overnight
and noticed a bruise on Aubrey’s forehead and that when Rood
asked Chavez about the bruise, he told her that Aubrey had
fallen off a bed. Rood testified that at that time, Aubrey was
at a stage of development where she was not able to roll over.
The court gave a limiting instruction regarding use of evidence
regarding this prior injury in which it instructed the jury that
this evidence should be considered only for intent and absence
of mistake or accident.
With respect to the events surrounding Aubrey’s death, the
testimony indicates that Rood and the family went to bed at
about 11 p.m. on April 19, 2009. Aubrey slept well at first, but
beginning around 1 a.m. on April 20, she woke up from time to
time crying and upset. Rood attempted to keep Aubrey settled
until approximately 5:30 a.m., when Rood started getting ready
for work. While Rood was getting ready, Chavez was awake
and Rood heard Chavez tell Aubrey, who was still crying, to
“shut up.” Rood noticed Chavez had put Aubrey into a chair
Rood referred to as a “bouncer.” When Rood left for work at
approximately 5:45 a.m., Chavez was in bed with his head
covered, wearing earphones and listening to an audio player.
Aubrey was sitting in the bouncer and was calm and awake and
looking at Rood.
Rood returned home from work at about 7:30 a.m. Chavez
was getting ready for work. Aubrey was still in the bouncer and
looked like she was asleep. Rood prepared breakfast for the two
older children. Chavez left, shortly after Rood returned home,
in order to go to work and to take Aubrey’s oldest brother to
school. Her other brother finished breakfast, and Rood and he
went to a bedroom to watch cartoons while Aubrey was still
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in the bouncer, appearing to be asleep. About a half hour later,
Rood checked on Aubrey and realized that she was pale, which
was a change from earlier. Rood pulled Aubrey out of the
bouncer and noticed that she was limp and appeared “lifeless.”
Rood called the 911 emergency dispatch service and attempted
to revive Aubrey. Rood denied that she had ever shaken Aubrey
or done anything to injure her.
After the State rested its case, Chavez moved to dismiss,
arguing that there was insufficient evidence that he intentionally abused Aubrey or that his actions caused her death. The
court overruled the motion, stating that there was circumstantial
evidence from which the jury could make a finding of guilt.
Chavez presented a defense that included testimony by his
father, mother, and brother generally to the effect that Chavez
was a loving and caring father. The theory of Chavez’ defense
was an absence of intent or that Aubrey’s death was caused
by accident or mistake. After he rested his case, Chavez
renewed his motion to dismiss, and the court again overruled
the motion.
The jury found Chavez guilty of intentional child abuse
resulting in death, and the court entered judgment based on
the jury’s verdict. The court denied Chavez’ motion for new
trial, in which he asserted, inter alia, that the verdict was not
supported by sufficient evidence and that the court erroneously
admitted evidence of injuries Aubrey sustained prior to the date
of her death. The court sentenced Chavez to imprisonment for
40 years to life on the conviction for intentional child abuse
resulting in death and ordered that his sentence of imprisonment for 12 to 24 months for possession of methamphetamine
be served concurrently with the child abuse sentence.
Chavez appeals his conviction.
III. ASSIGNMENTS OF ERROR
Chavez claims, summarized and restated, that the district
court erred when it (1) admitted evidence of injuries Aubrey
sustained prior to the date of her death and (2) overruled his
motion for new trial, in which he had claimed that the evidence
of Aubrey’s injuries prior to her death had been wrongly admitted and that there was not sufficient evidence to support his
conviction for intentional child abuse resulting in death.
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IV. STANDARDS OF REVIEW
[1,2] 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 admissibility. State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, we review
the admissibility of evidence for an abuse of discretion. Id.
[3] It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or acts
under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008), and rule 404(2), and the trial court’s decision will not be
reversed absent an abuse of discretion. State v. Baker, 280 Neb.
752, 789 N.W.2d 702 (2010).
[4] In a criminal case, a motion for new trial is addressed to
the discretion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
[5,6] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Robinson, 278 Neb. 212,
769 N.W.2d 366 (2009). Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Id.
V. ANALYSIS
1. Evidence of Prior Injuries
(a) Admission of Evidence of Prior Injuries
Revealed Upon Autopsy Was Not Error
Chavez claims that the evidence related to prior injuries
as seen in the autopsy was erroneously admitted. The district
court allowed the evidence for the limited purpose of showing
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intent and absence of mistake or accident under rule 404(2).
We find no error in this ruling.
Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[7-9] Rule 404(2) prohibits the admission of other bad acts
evidence for the purpose of demonstrating a person’s propensity
to act in a certain manner. But evidence of other crimes which
is relevant for a purpose other than to show the actor’s propensity is admissible under rule 404(2). See, State v. McPherson,
266 Neb. 734, 668 N.W.2d 504 (2003); State v. Aguilar, 264
Neb. 899, 652 N.W.2d 894 (2002). Evidence that is offered for
a proper purpose is often referred to as having a “special” or
“independent” relevance, which means its relevance does not
depend upon its tendency to show propensity. State v. Aguilar,
supra; State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
An appellate court’s analysis under rule 404(2) considers (1)
whether the evidence was relevant for some purpose other
than to prove the character of a person to show that he or she
acted in conformity therewith; (2) whether the probative value
of the evidence is substantially outweighed by its potential for
unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited
purpose for which it was admitted. State v. Epp, 278 Neb. 683,
773 N.W.2d 356 (2009); State v. Floyd, 277 Neb. 502, 763
N.W.2d 91 (2009).
The portion of the evidence revealed upon autopsy to which
Chavez refers on appeal concerns injuries to Aubrey prior to
the incident surrounding her death. This evidence is not an
integral part of the crime charged and, because it is extrinsic to the crime, is covered under rule 404(2). See State v.
McPherson, supra.
This case involves a conviction for intentional child abuse
resulting in death. The evidence in the case recited above
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showed that Aubrey’s caregivers included Chavez, Rood, and
Rood’s mother. The evidence showed extensive remote injuries
to Aubrey which were characterized in the record as indicative
of battered child syndrome.
In Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L.
Ed. 2d 385 (1991), the U.S. Supreme Court concluded that
evidence that an infant victim suffered from battered child syndrome was admissible as relevant to establish intent or absence
of accident. The Court stated:
The demonstration of battered child syndrome “simply
indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means.”
. . . Thus, evidence demonstrating battered child syndrome
helps to prove that the child died at the hands of another
and not by falling off a couch, for example; it also tends
to establish that the “other,” whoever it may be, inflicted
the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though
it does not purport to prove the identity of the person
who might have inflicted those injuries. . . . [Where the
defendant is charged with intentional child abuse resulting in death, the prosecutor is] required to prove that [the
victim’s] death was caused by the defendant’s intentional
act. Proof of [the victim’s] battered child status helped to
do just that; although not linked by any direct evidence
to [the defendant], the evidence [in Estelle v. McGuire]
demonstrated that [the victim’s] death was the result of
an intentional act by someone, and not an accident. . . .
We conclude that the evidence of prior injuries presented
at [the defendant’s] trial, whether it was directly linked
to [the defendant] or not, was probative on the question
of the intent with which the person who caused the injuries acted.
Estelle v. McGuire, 502 U.S. at 68-69 (citations omitted).
The district court admitted the evidence of Aubrey’s prior
injuries on the basis of Estelle v. McGuire and other authorities
and at trial gave a limiting instruction regarding the testimony
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pertaining to Aubrey’s remote injuries and the battered child
syndrome testimony.
Chavez was charged with an intentional crime. The evidence
was admitted under the framework of rule 404(2); it was not
excludable propensity evidence, but, instead, went to intent and
absence of mistake or accident. We have considered the admission of this evidence under our abuse of discretion standard of
review, State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010),
and by reference to Estelle v. McGuire, supra. We determine
that the district court did not abuse its discretion when it admitted for limited purposes evidence of Aubrey’s prior injuries
consistent with battered child syndrome.
(b) Admission of Evidence Regarding March 2009
Forehead Injury Was Harmless
Chavez specifically claims error with respect to the admission of evidence that Aubrey’s forehead was injured in March
2009 while he was the sole caregiver. He argues that evidence
of this incident was likely to be seen by the jury for the
improper purpose of propensity evidence and thus cause the
jury to see him as a bad person or that he acted in conformity
with prior bad conduct and intentionally caused the death of
Aubrey on April 20. Assuming without deciding that evidence
of the March 2009 forehead injury was erroneously admitted,
we conclude that its admission was harmless beyond a reasonable doubt. See State v. Poe, 276 Neb. 258, 754 N.W.2d 393
(2008), cert. denied ___ U.S. ___, 129 S. Ct. 914, 173 L. Ed.
2d 127 (2009).
[10] In a harmless error review, an appellate court looks at
the evidence upon which the jury rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether
the guilty verdict rendered in the trial was surely unattributable
to the error. State v. Morrow, 273 Neb. 592, 731 N.W.2d 558
(2007), disapproved on other grounds, State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007). We conclude that the jury
would have reached the same verdict regardless of whether the
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evidence of the injury to Aubrey’s forehead in March 2009 was
received into evidence.
The evidence described earlier in this opinion established
that Aubrey’s death was the result of shaken baby syndrome
and that Chavez, as sole caregiver, had shaken her during the
relevant timeframe. The evidence showing battered child syndrome tended to negate Chavez’ defense of mistake or accident
or lack of intent, to the extent that it showed that Aubrey’s
death “was the result of an intentional act by someone, and not
an accident.” See Estelle v. McGuire, 502 U.S. 62, 69, 112 S.
Ct. 475, 116 L. Ed. 2d 385 (1991). Even if the evidence of the
March 2009 injury to Aubrey by Chavez had not been admitted, the jury would have reached the same verdict of guilty. We
determine that the admission of evidence regarding the March
2009 injury, if error, was harmless.
2. Denial of Motion for New Trial
In a criminal case, a motion for new trial is addressed to the
discretion of the trial court, and unless an abuse of discretion
is shown, the trial court’s determination will not be disturbed.
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
(a) The District Court Did Not Err When It Denied
Chavez’ Motion for New Trial Based on
Admission of Prior Injuries
Chavez claims that the district court erred when it denied
his motion for new trial based on his argument that admission
of evidence of Aubrey’s prior injuries was error. We reject this
assignment of error.
We have considered above the admission of evidence related
to injuries suffered by Aubrey prior to the incident of the
crime charged. We have concluded that the district court did
not abuse its discretion when it admitted testimony showing
Aubrey was a victim of battered child syndrome and that if it
erred when it admitted evidence that Chavez injured Aubrey’s
forehead in March 2009, such admission was harmless error.
Thus, we conclude that the district court did not abuse its discretion when it denied Chavez’ motion for new trial based on
purported erroneous admission of prior injury evidence.
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(b) The District Court Did Not Err When It Denied
Chavez’ Motion for New Trial Based on
Insufficient Evidence
Chavez claims that the district court erred when it denied his
motion for new trial based on a claim of insufficient evidence.
We reject this assignment of error.
When reviewing a criminal conviction for sufficiency of the
evidence to sustain the conviction, the relevant question for an
appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. State v. Robinson, 278 Neb. 212, 769 N.W.2d
366 (2009). Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in
reviewing a criminal conviction, does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence. Id.
Chavez was convicted of intentional child abuse resulting in
death, a Class IB felony under § 28-707(6). Under § 28-707(1),
a person is guilty of child abuse “if he or she knowingly,
intentionally, or negligently causes or permits a minor child to
be . . . [p]laced in a situation that endangers his or her life or
physical or mental health [or to be d]eprived of necessary . . .
care.” Section 28-707(6) provides that child abuse is a Class IB
felony “if the offense is committed knowingly and intentionally
and results in the death of such child.” In this case, the State
charged in the information that Chavez committed the offense
knowingly and intentionally and that the offense resulted in
Aubrey’s death.
Through the testimony of Rood, the State presented evidence that Chavez was the sole caregiver of Aubrey at the rele
vant time. Chavez told Rader he shook Aubrey. Through the
testimony of medical experts, there was evidence that Aubrey’s
cause of death was shaken baby syndrome. Other properly
admitted evidence tended to negate Chavez’ defense of lack of
intent or, alternatively, mistake or accident.
[11] We have stated that the credibility and weight of witness
testimony are for the jury to determine, and witness credibility
is not to be reassessed on appellate review. State v. Archie,
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273 Neb. 612, 733 N.W.2d 513 (2007). If the jury believed the
testimony of Rood, Rader, and the doctors, such evidence supported Chavez’ conviction. Although there was also evidence
which might have called each witness’ credibility into question, that assessment was for the jury. Viewing the evidence
in the light most favorable to the State, it is clear that the jury
believed the testimony of the foregoing witnesses and did not
believe Chavez’ testimony with regard to the incident and to
matters where the witnesses’ testimony conflicted with that of
Chavez. When reviewing a criminal conviction for sufficiency
of the evidence, we, as an appellate court, do not pass on the
credibility of witnesses. See State v. Branch, 277 Neb. 738, 764
N.W.2d 867 (2009). Considering the testimony of Rood, Rader,
and the doctors, the jury, as the trier of fact, could reasonably
have found the essential elements of knowing or intentional
child abuse resulting in death beyond a reasonable doubt based
on the evidence.
We conclude that the evidence was sufficient to support
Chavez’ conviction for intentional child abuse resulting in
death. Therefore, the district court did not abuse its discretion
when it denied Chavez’ motion for new trial on this basis.
VI. CONCLUSION
We conclude that testimony of Aubrey’s injuries prior to
the crime charged, which injuries showed battered child syndrome, was properly admitted and that admission of evidence regarding the March 2009 forehead injury, if error,
was harmless. We conclude the district court did not abuse its
discretion when it denied Chavez’ motion for new trial based
on evidentiary rulings and purportedly insufficient evidence.
The evidence was sufficient to support Chavez’ conviction for
intentional child abuse resulting in death. We therefore affirm
Chavez’ conviction.
Affirmed.
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