IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HARDEN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DWAN D. HARDEN, APPELLANT.
Filed May 17, 2016. No. A-15-536.
Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Douglas A. Johnson for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Dwan D. Harden appeals his conviction in the Douglas County District Court of first degree
sexual assault. He argues that the court allowed an improper expert opinion into evidence at trial
and that the evidence is insufficient to sustain the conviction. Finding no merit to these arguments,
we affirm.
BACKGROUND
On May 9, 2014, Harden and the victim in this case, M.P., began communicating on a
social media website. After going out drinking with her friends that night, M.P. returned home
around midnight and noticed that Harden was online. They agreed to get together to smoke
marijuana, and Harden picked M.P. up at her residence in a sport utility vehicle (SUV). They drove
to a gas station, and afterwards, instead of taking M.P. home like she requested, Harden turned
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into a different neighborhood and parked the SUV. He asked M.P. if he could perform oral sex on
her, and M.P. said no. He asked her again, and she called him “pathetic and desperate” and
continued to beg him to take her home. Harden finally agreed and drove towards M.P.’s
neighborhood but turned into an apartment complex instead and parked again. M.P. told him she
wanted to leave, and he again said that he wanted to perform oral sex on her. She asked if that was
the only way he was going to let her out of the car and he said yes. So, thinking that was the only
way out, she agreed. He then climbed over into the passenger side of the SUV and touched M.P’s
vaginal area with his fingers and then his mouth. While he was doing so, M.P. told him he was
“forcing it” and that she did not want him to do it.
Harden then climbed back over to the driver’s seat and moved the SUV to a darker and
more secluded parking space. He then climbed back into the passenger side and tried to remove
M.P.’s shorts. When M.P. resisted and tried to reach over and honk the horn, Harden punched her
on the left side of her face. Harden then pulled her shorts down and had sexual intercourse
with her.
Afterwards, on the way back to M.P.’s residence, Harden was pulled over by a Douglas
County Sheriff’s deputy because the SUV had no license plates. When Deputy Christopher Yort
approached the driver’s side of the SUV, he observed M.P. in the passenger seat, sobbing and
shaking. She told him she just wanted to get out of the SUV, and after she exited, Yort noticed that
her shorts were unbuttoned and her belt was undone. M.P. described to Yort what happened and
became more upset as the conversation continued. She told Yort that Harden had punched her and
then “raped” her. Yort observed that M.P.’s left eye was red and swollen. Another Douglas County
Sheriff’s deputy responded to Yort’s call for backup and also noticed that M.P. appeared upset and
was crying. M.P. went to the police station for questioning and then to the hospital for a sexual
assault examination. Harden was also questioned by police and admitted to having sexual
intercourse with M.P. but claimed it was consensual. Harden had no explanation for the injury to
M.P.’s face. Harden explained that M.P. was crying and distraught at the time of the traffic stop
because she told him she had a warrant out for her arrest. Upon investigation, however, Yort
determined there was no warrant.
Based on the events of May 9, 2014, Harden was charged with first degree sexual assault.
A jury trial was held in March 2015. At trial, Yort and M.P. testified generally as to the events
described above. The jury also heard testimony from Krystle Adams, the sexual assault nurse
examiner who performed M.P.’s examination. Adams said that during the examination, M.P. was
visibly shaken, crying, and anxious. Adams observed significant bruising and swelling to the left
side of M.P.’s face, specifically to the left of her eye and upper cheek area. Adams testified that
M.P.’s explanation for the cause of the injury was consistent with the injury she observed, and the
amount of swelling indicated to Adams that the injury had occurred within the previous few hours.
Adams also conducted a vaginal examination on M.P. and testified that she did not find
any injuries. The State then attempted to ask Adams for her expert opinion, based on her experience
and training as well as research and literature, as to the percentage of sexual assaults cases in which
no vaginal injuries are found. Harden objected, first arguing that the research and literature and
Adams’ observations from other examinations she has performed were not relevant. He then
argued that he had no notice that Adams was an expert or that she was going to be asked give an
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expert opinion. He claimed that without notice that she was an expert, he could not properly
cross-examine her or find a rebuttal witness to refute her testimony. Harden therefore requested a
motion in limine precluding Adams’ testimony. The district court overruled the objection and
motion in limine, ruling that Adams could provide her expert opinion as to whether the absence of
any injuries negates forcible penetration, but it declined to allow her to provide any percentages or
number of cases involving no injury. Adams then testified over objection that lack of injury was
still consistent with sexual assault and that she does not very frequently find injury during sexual
assault examinations.
The jury found Harden guilty of first degree sexual assault. He was sentenced to 10 to 20
years’ imprisonment. He now timely appeals to this court.
ASSIGNMENTS OF ERROR
Harden assigns that the district court erred in denying his motion in limine challenging
Adams’ testimony and in finding sufficient evidence to support the conviction.
STANDARD OF REVIEW
The standard for reviewing the admissibility of expert testimony is abuse of discretion.
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Escamilla, 291 Neb. 181, 864 N.W.2d
376 (2015). 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. Id.
ANALYSIS
Harden argues that the district court erred in overruling his motion in limine and allowing
Adams to give an expert opinion. Although the court treated the objection as a motion in limine
and Harden’s assignment of error refers to a motion in limine, we note that the objection was based
on lack of disclosure, and we therefore review whether the court erred in overruling the objection.
In his brief, Harden argues that Adams was not properly qualified as an expert under the
standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L.Ed.2d 469 (1993) and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862
(2001). We find this argument has not been preserved for appeal.
On appeal, a defendant may not assert a different ground for his objection to the admission
of evidence than was offered at trial. State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016). An
objection, based on a specific ground and properly overruled, does not preserve a question for
appellate review on any other ground. Id. More specifically, if a party does not object at trial to a
witness’ qualifications to testify as an expert, that party waives the right to assert on appeal that
allowing the witness to testify as an expert was prejudicial error. See Hawkins v. City of Omaha,
261 Neb. 943, 627 N.W.2d 118 (2001). See also State v. Casillas, 279 Neb. 820, 782 N.W.2d 882
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(2010) (requiring party objecting under Daubert/Schafersman to do so with enough specificity to
alert the court as to what is being challenged).
In the instant case, when the State began laying foundation to elicit an expert opinion from
Adams, Harden first objected on relevance grounds and then on the grounds that Adams had not
been disclosed as an expert and he was unaware of the basis of her opinion. The district court
allowed Adams to state her opinion as to whether the absence of injury negates forcible
penetration. Harden cannot now be heard to complain that Adams was not qualified to testify as
an expert witness when he failed to object to her opinion on that basis at trial.
In his reply brief Harden contends that his objection based on lack of disclosure
encompasses Adams’ qualifications, but we do not agree. Under Neb. Rev. Stat. § 27-103 (Reissue
2008), error may not be predicated upon a ruling which admits evidence unless a timely and
specific objection appears on the record. To sufficiently call specialized knowledge into question
under Daubert and Schafersman is to object with enough specificity so that the court understands
what is being challenged, and the objection, which generally takes the form of a pretrial motion,
should include or incorporate all bases for challenging the admissibility, including any challenge
to the qualifications of the expert. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
Objections on the grounds of foundation and failure to comply with a criminal discovery statute
are insufficient to preserve for appellate review the issue of the witness’ qualifications under
Daubert/Schafersman. See State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005). We recognize
Harden’s argument that because Adams was not properly disclosed, he was hindered in his ability
to object to her qualifications. We note that Adams was disclosed as a sexual assault nurse
examiner. Furthermore, the State’s line of questioning was obviously to elicit her opinion on
whether forcible penetration always resulted in vaginal injury. The district court excused the jury
for the day and held a sidebar to address Adams’ proposed testimony. Harden had ample
opportunity during both the examination and the sidebar to raise a Daubert/Schafersman objection,
but instead focused his objections on relevance and notice. Because Harden did not specifically
object to Adams’ qualifications at trial, he may not raise that issue on appeal.
Harden further claims the court erred in admitting Adams’ expert opinion because the State
failed to disclose that she would be asked to give an expert opinion or the basis for her opinion.
We find that Harden has waived this argument.
A defendant in a criminal proceeding has no general due process right to discovery. State
v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012). Due process does require the State to disclose
exculpatory evidence to a defendant, but the State is not under a constitutional duty to disclose all
information that might affect the jury’s verdict. See State v. Pieper, 274 Neb. 768, 743 N.W.2d
360 (2008). Upon a defendant’s proper request through discovery procedure, however, the State
must disclose information which is material to the preparation of a defense to the charge against
the defendant. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
In Nebraska, discovery in criminal cases is governed by statute. See State v. Smith, 292
Neb. 434, 873 N.W.2d 169 (2016). Prior to trial, Harden filed a motion for discovery. The court
granted the motion, ordering mutual and reciprocal discovery pursuant to statute. Discovery statute
Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2014) governs our analysis and provides in relevant part
that following a proper discovery request, the State has a statutory obligation to disclose the results
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and reports of physical or mental examinations, and of scientific tests, or experiments made in
connection with the particular case, or copies thereof. § 29-1912(1)(e). The State provided Harden
with Adams’ report prior to trial as it was required to do under § 29-1912(1)(e), but Harden claims
the State was also required to disclose Adams’ status as an expert witness, that she would be asked
to give an expert opinion at trial, and the basis for her opinion.
The Nebraska Supreme Court has repeatedly held that when the prejudice caused by
belated or insufficient disclosure could be remedied by a properly granted continuance, a
defendant’s failure to request a continuance waives any rights he or she may have pursuant to
§ 29-1912. See, State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016); State v. Harris, 263 Neb.
331, 640 N.W.2d 24 (2002); State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 255
Neb. 889, 587 N.W.2d 673 (1999). The Supreme Court recognized that a continuance will not cure
every instance of belated disclosure, citing examples such as when evidence has been lost or
destroyed or witnesses have gone missing. See State v. Lotter, supra. But nonetheless the court
held that when a continuance will cure the prejudice caused by a belated disclosure, a continuance
should be requested by counsel and granted by the trial court. See id.
In the present case, Harden argued at trial that he was prejudiced by the State’s failure to
disclose Adams’ opinion prior to trial because he was unable to properly cross-examine her or
secure a rebuttal witness to refute her testimony. In State v. Lotter, supra, the Supreme Court found
that a continuance would have remedied any prejudice resulting from the State’s delay in
disclosing a co-conspirator’s sentencing document because it would have given the defendant’s
counsel time to analyze the document and recall the co-conspirator, who was still available for
further cross-examination. Likewise here, a continuance would have allowed Harden’s counsel
time to prepare additional cross-examination of Adams and obtain a rebuttal witness to refute her
testimony. Therefore, even if additional disclosure was required, because Harden failed to seek a
continuance, he has waived any rights to which he otherwise would be entitled pursuant to
§ 29-1912.
Harden argues that the district court erred in finding sufficient evidence to support his
conviction. We disagree.
Harden was charged with first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(a)
(Reissue 2008). According to this statute, a person commits first degree sexual assault if he or she
subjects another person to sexual penetration without the consent of the victim. Sexual penetration
includes sexual intercourse and cunnilingus. Neb. Rev. Stat. § 28-318(6) (Cum. Supp. 2014).
Accordingly, the State was required to prove that Harden subjected M.P. to sexual penetration
without her consent.
The elements of penetration and Harden’s identity appear to be undisputed. Harden
admitted to Yort that he engaged in sexual intercourse with M.P., and M.P. identified Harden as
the man she was with on May 9, 2014. The issue in this case is whether the act occurred with or
without M.P.’s consent. Thus, our inquiry will be limited to whether the State adduced sufficient
evidence so that a rational juror could have found that the sexual penetration occurred without
M.P.’s consent.
M.P. testified that she repeatedly refused Harden’s requests to perform oral sex on her but
that she ultimately acquiesced because she believed that was the only way Harden would take her
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home. Despite this, when Harden was engaging in the act with her, she told him he was “forcing
it and [she] didn’t want it.” M.P. indicated that she told Harden at least ten times that she wanted
to go home and that she did not want to engage in any sexual acts with him.
As to the intercourse, M.P. testified that when Harden climbed over to the passenger side
of the vehicle and tried to take off her pants, she reached over to honk the horn and he punched
her in the face. She said she continued to try to push him away and was crying as he was assaulting
her.
There was also circumstantial evidence presented that corroborated M.P.’s version of the
events. Both police officers observed M.P. to be very upset and crying. Yort said she was shaking,
her voice was cracking, and she told him that Harden had punched her and “raped” her. Adams
also observed that M.P. was visibly shaken, crying, and anxious during the examination and had
significant bruising and swelling on her face that appeared recent and consistent with M.P.’s
explanation of the cause of the injury. Harden had no explanation for M.P.’s facial injury and
claimed that she was upset because she told him she had a warrant out for her arrest. The police
determined that there was no warrant for M.P.’s arrest, and at trial, M.P. denied making that
statement to Harden.
Harden argues that the police failed to sufficiently investigate the case and failed to confirm
any facts beyond M.P.’s version of events. However, the testimony of a victim of first degree
sexual assault does not require corroboration. See Neb. Rev. Stat. § 29-2028 (Reissue 2008).
Harden further argues that M.P.’s testimony is unreliable and insufficient upon which to base his
conviction because it contained inconsistencies. What he is asking us to do through his argument
is reweigh the evidence presented to the jury, which we cannot do. See State v. Escamilla, 291
Neb. 181, 864 N.W.2d 376 (2015). The jury found M.P.’s testimony credible, and we do not
reweigh this finding on appeal. Viewing the evidence in the light most favorable to the prosecution,
we conclude that the evidence was sufficient for the jury to find Harden guilty of first degree sexual
assault.
CONCLUSION
We conclude that Harden failed to preserve his challenge to Adams’ expert opinion on
appeal and that the evidence was sufficient to support the conviction. We therefore affirm.
AFFIRMED.
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