State v. Lantz ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 679
Cite as 21 Neb. App. 679court with directions to sustain the motion to transfer to the
tribal court.
CONCLUSION
Because the State did not meet its burden of establishing
good cause to deny transfer to tribal court, the juvenile court
abused its discretion in denying Yolanda’s motion to transfer.
We reverse the order of the juvenile court and remand the
cause with directions to sustain the motion to transfer.
R eversed and remanded with directions.
State of Nebraska, appellee, v.
Ronald L. Lantz, Sr., appellant.
___ N.W.2d ___
Filed January 21, 2014. No. A-12-1012.
1. Search Warrants: Affidavits: Probable Cause. To be valid, a search warrant
must be supported by an affidavit which establishes probable cause.
2. Search Warrants: Probable Cause: Words and Phrases. Probable cause suf-
ficient to justify issuance of a search warrant means a fair probability that contra-
band or evidence of a crime will be found.
3. Search Warrants: Probable Cause: Proof. Proof of probable cause justifying
issuance of a search warrant generally must consist of facts so closely related to
the time of issuance of the warrant as to justify a finding of probable cause at
that time.
4. Search and Seizure: Probable Cause. Probable cause to search is determined by
a standard of objective reasonableness, that is, whether known facts and circum-
stances are sufficient to warrant a person of reasonable prudence in a belief that
contraband or evidence of a crime will be found.
5. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In review-
ing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a “totality of the circumstances”
rule whereby the question is whether, under the totality of the circumstances
illustrated by the affidavit, the issuing magistrate had a substantial basis for find-
ing that the affidavit established probable cause.
6. Search Warrants: Affidavits: Appeal and Error. As a general rule, an appellate
court is restricted to consideration of the information and circumstances found
within the four corners of an affidavit in support of a search warrant.
7. Probable Cause: Affidavits: Time. There is no bright-line test for determining
when information is stale. Whether the averments in an affidavit are sufficiently
timely to establish probable cause depends on the particular circumstances of
the case, and the vitality of probable cause cannot be quantified by simply
Decisions of the Nebraska Court of Appeals
680 21 NEBRASKA APPELLATE REPORTS
counting the number of days between the occurrence of the facts supplied and
the issuance of the affidavit. Time factors must be examined in the context of a
specific case and the nature of the crime under investigation.
8. ____: ____: ____. Where the facts contained in an affidavit indicate an isolated
violation of the law, it would not be unreasonable to imply that probable cause
dwindles rather quickly with the passage of time; however, where the facts con-
tained in an affidavit indicate protracted and continuous criminal activity or, in
other words, a course of conduct, the passage of time becomes less significant.
9. Search Warrants: Affidavits. Omissions in an affidavit used to obtain a search
warrant are considered to be misleading when the facts contained in the omitted
material tend to weaken or damage the inferences which can logically be drawn
from the facts as stated in the affidavit.
10. Search and Seizure: Search Warrants: Motions to Suppress: Proof. A defend­
ant who seeks to suppress evidence obtained under a search warrant has the
burden of establishing that the search warrant is invalid so that evidence secured
thereby may be suppressed.
11. Search Warrants: Affidavits: Probable Cause: Courts: Appeal and Error.
The role of an appellate court is to determine whether the affidavit used to obtain
a search warrant, if it contained the omitted information, would still provide a
magistrate or judge with a substantial basis for concluding that probable cause
existed for the issuance of the warrant. If a substantial basis for probable cause
would still exist, then the defendant’s argument fails.
12. 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.
13. 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.
14. Trial: Jurors. The issue of the retention of a juror after the commencement of
trial is a matter of discretion for the trial court.
15. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury
misconduct bears the burden of proving, by a preponderance of the evidence, (1)
the existence of jury misconduct and (2) that such misconduct was prejudicial to
the extent that the defendant was denied a fair trial.
16. Trial: Jurors: Presumptions: Proof. The competency of a juror is generally
presumed, and the burden is on the challenging party to establish otherwise.
17. Juror Qualifications: Judges. A trial judge is not required to excuse a juror
when the juror is able to decide the case fairly and impartially.
18. Juror Qualifications: Appeal and Error. An appellate court defers to the trial
court’s decision whenever a juror is unequivocal that he or she can be fair or
impartial. This rule applies both to the issue of whether a potential juror should
be removed for cause prior to trial and to the situation of whether a juror should
be removed after the trial has commenced.
19. Appeal and Error. An appellate court always reserves the right to note plain
error which was not complained of at trial or on appeal.
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 681
Cite as 21 Neb. App. 67920. ____. Consideration of plain error occurs at the discretion of an appellate court.
21. ____. Plain error exists where there is an error, plainly evident from the record
but not complained of at trial, which prejudicially affects a substantial right of a
litigant and is of such a nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
22. Statutes. To the extent there is a conflict between two statutes, the specific stat-
ute controls over the general statute.
23. Convictions: Sentences. The sentence for any conviction carrying a mandatory
minimum sentence must be ordered to be served consecutively.
24. ____: ____. Mandatory minimum sentences cannot be served concurrently. A
defendant convicted of multiple counts each carrying a mandatory minimum
sentence must serve the sentence on each count consecutively.
25. Sentences: Time. A sentence validly imposed takes effect from the time it is
pronounced.
26. Sentences. When a valid sentence has been put into execution, the trial court
cannot modify, amend, or revise it in any way, either during or after the term or
session of court at which the sentence was imposed.
27. Judgments: Records. When there is a conflict between the record of a judgment
and the verbatim record of the proceedings in open court, the latter prevails.
Appeal from the District Court for Jefferson County: Paul
W. Korslund, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
James R. Mowbray and Kelly S. Breen, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Inbody, Chief Judge.
I. INTRODUCTION
Ronald L. Lantz, Sr., was convicted of three counts of first
degree sexual assault of a child after a jury determined that
he had digitally penetrated his 14-year-old stepdaughter and
her friend during a sleepover. He has appealed these convic-
tions, contending that the district court erred (1) in denying his
motion to suppress, (2) in admitting evidence of prior sexual
assaults, and (3) in failing to remove a juror who overtly dem-
onstrated sympathy and bias.
Decisions of the Nebraska Court of Appeals
682 21 NEBRASKA APPELLATE REPORTS
II. STATEMENT OF FACTS
1. Background
On the evening of January 10, 2011, 14-year-old best friends
A.M. and M.C. had a sleepover at A.M.’s house. Also at
A.M.’s home were A.M.’s mother; A.M.’s stepfather, Lantz;
and A.M.’s younger brother and younger sister. At around 10
or 10:30 p.m., A.M., M.C., Lantz, and A.M.’s younger sister
were in the living room and A.M. and M.C. began watching
a “scary” movie. A.M.’s mother and younger brother were
already asleep in other areas of the home.
During the movie, Lantz gave M.C. a neck and back mas-
sage. During the back massage, M.C. was lying on her stom-
ach on a couch and Lantz was kneeling on the floor. Around
the time that Lantz was in the middle of giving M.C. the back
massage, A.M. was asleep. During the back massage, Lantz
said to M.C., “[D]on’t worry, I’m not going to do anything
stupid.” As M.C. began to drift off to sleep, she noticed that
Lantz was starting to massage her lower calves and was work-
ing his way up her legs. When Lantz got to her lower back,
he stuck his hands down her pants at her waistline along her
back. Lantz’ hands continued to go lower until he put a finger
inside of M.C.’s vagina. M.C. could feel what was happening,
but because she believed Lantz thought that she was sleeping,
she acted like she was stretching and getting ready to wake
up. At that point, M.C. felt Lantz pull his hand out of her
pants and turn around quickly, and by the time that she sat up,
Lantz was sitting on his bottom, not his knees, and was facing
the television.
M.C. complained that she had a headache and asked Lantz
to get her a washcloth and some Tylenol; when Lantz left to
go to the kitchen, she moved from the couch to the recliner.
After Lantz brought her the washcloth and Tylenol, he sat on
the couch and put A.M.’s feet over his lap. M.C. observed
Lantz’ hand under a blanket that was covering A.M., and to
M.C., he appeared to extend his hand up toward the area of
A.M.’s crotch; M.C. could see the blanket moving. According
to A.M., she fell asleep watching the movie and the next thing
that she remembered was waking up to find that Lantz had
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 683
Cite as 21 Neb. App. 679put his hand down the back of her sweatpants, underneath her
underwear, and that his finger was in her vagina.
At about 7 a.m., A.M. got up and went upstairs to her room
to get ready for school and checked her cellular telephone.
There was a text message that M.C. had sent at 2:38 a.m.,
stating that she had something to talk to A.M. about. A.M.
stated that her first thought was of Lantz and that she was
scared and shocked and “didn’t want to believe it at first.”
A.M. continued getting ready for school, and about 5 or 10
minutes later, M.C. came upstairs to A.M.’s room. M.C. told
A.M. that Lantz had “fingered [M.C.],” and A.M. responded
that it had been happening to A.M. for a while and that she
was sorry it happened to M.C. M.C. asked A.M. why she
had not said anything, and A.M. began crying and responded
that she was scared. M.C. called her stepfather and told him
what had happened. He responded that he was on his way to
A.M.’s house.
After that telephone call, A.M. and M.C. told A.M.’s mother,
who did not believe them. Shortly thereafter, A.M.’s grand-
mother arrived to take the girls to school, so A.M. and M.C.
went outside, got in her van, and told her that Lantz had
touched them inappropriately. She told A.M. to go pack a bag
because A.M. was going to stay with her for a while. A.M.
and M.C. went back inside the house, where A.M. packed a
bag full of clothes. A.M. began living with her grandmother
that day and continued to reside with her up until the time of
the trial.
After the girls exited the house again, M.C.’s stepfather had
arrived and they all went to the police station, where A.M.
and M.C. gave statements that Lantz had sexually assaulted
them. After giving those statements, A.M. and M.C. were
taken to a hospital for sexual assault examinations. A.M. and
M.C. provided consistent statements to hospital personnel
that Lantz had sexually assaulted them and that the sexual
assaults had consisted of digital penetration of the vagina with
Lantz’ finger.
At the hospital, the underwear of both A.M. and M.C. was
collected as evidence because they were still wearing the under-
wear that they had been wearing when they were assaulted. The
Decisions of the Nebraska Court of Appeals
684 21 NEBRASKA APPELLATE REPORTS
presence of sperm cells, or semen, was confirmed on the inside
crotch area of A.M.’s underwear, and Lantz was included as a
major contributor of the sperm cells.
As part of the investigation into A.M.’s and M.C.’s allega-
tions, Fairbury police officer David Schmehl interviewed Lantz
on the afternoon of January 11, 2011. Schmehl read Lantz his
Miranda rights and then asked Lantz if he understood why he
was being interviewed, to which Lantz responded that his wife,
A.M.’s mother, had told him that his stepdaughter, A.M., and
her friend, M.C., had accused him of touching them. Lantz
denied the allegations. That afternoon, Schmehl arrested Lantz
for two counts of misdemeanor sexual assault. Lantz was even-
tually charged with three counts of first degree sexual assault
of a child, each count a Class IB felony.
As part of his followup investigation, Schmehl, along with
Investigator Kerry Crosby of the Nebraska Department of
Justice, Office of the Attorney General, executed a search war-
rant at the address in Fairbury, Nebraska, where the assaults
allegedly occurred. During this search, executed on March 29,
2012, Crosby used an alternative light source, or black light, to
identify biological evidence, resulting in Schmehl and Crosby’s
seizing three sections of carpet that were cut from the room
that was identified as A.M.’s bedroom and a brick that had
some “detailing” done to it. A.M. had stated that she placed
a decorated brick in front of her bedroom door after she sus-
pected that Lantz was coming into her bedroom at night while
she was asleep.
2. Motion to Suppress
Lantz filed a motion to suppress evidence obtained during
the search of “his living quarters,” which was the residence
where A.M. and M.C. had alleged that the sexual assaults
occurred. A suppression hearing was held on May 17, 2012.
Lantz argued that the evidence sought by the affidavit to
search his residence was not relevant to the alleged crimes of
digital penetration, that the information contained in the affi-
davit was stale, that the affidavit omitted material facts, and
that therefore, there was no probable cause for issuance of the
search warrant.
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 685
Cite as 21 Neb. App. 679At the suppression hearing, testimony was adduced from
Schmehl and Crosby and a certified record containing the affi-
davit for the search warrant, the search warrant, the return, and
an inventory was received into evidence. Crosby’s affidavit
in support of the search warrant set forth that based upon his
experience—which included hundreds of previous investiga-
tions dealing with child sexual assaults, child abuse or neglect,
and child pornography cases—biological evidence such as
semen, blood, vaginal secretions, and epithelial cells can be
located years after being placed on items such as fabric or
carpet. The biological evidence in places that are climate con-
trolled, such as a house, apartment, or commercial space such
as an office building, can be found by using the technology
referred to above as an “alternative light source.” Crosby also
verified that 2 days prior to the search warrant’s being sought,
the utilities for the house to be searched were in the name of
A.M.’s mother.
The district court denied Lantz’ motion to suppress in a
written order filed on June 21, 2012. The court specifically
addressed Lantz’ arguments that there was no probable cause
for issuance of the warrant because the affidavit was not rel-
evant to the crimes alleged and that the information contained
in the affidavit was stale because of a delay of more than a
year in seeking the warrant. The district court rejected Lantz’
relevancy argument by noting that it was significant that
Lantz’ semen was found in the underwear that A.M. was wear-
ing during the alleged sexual assault on January 11, 2011, and
that A.M. had reason to believe that Lantz was coming into
her bedroom at night while she slept and was watching her
while she showered. The court also noted that “[i]t is also very
significant that A.M. believed Lantz was coming into her room
at night while she slept, over a long period of time, she hav-
ing recalled the first incident to have occurred on December
10, 2009.”
The court likewise rejected Lantz’ staleness argument, not-
ing that the time span was significant, but that a determina-
tion of staleness depends upon the particular circumstances
of the case. In the case at hand, the district court evaluated
the time
Decisions of the Nebraska Court of Appeals
686 21 NEBRASKA APPELLATE REPORTS
in light of . . . Crosby’s statement in his affidavit that
biological evidence such as semen can be found years
after being deposited within the living quarters of a resi-
dence with normal climate control. This fact increases the
likelihood of discovering probative DNA evidence a year
later when Crosby came into the case and reviewed the
investigation done by the Fairbury Police Department.
Also, the decorative brick which A.M. described in detail
is the type of item which is not likely to be removed
from a room.
Thus, the district court found that the county judge could
conclude there was a fair probability of finding biological
and physical evidence in the areas to be searched at the time
the search warrant was to be executed and, under the totality
of the circumstances in the case, that the county judge had
a substantial basis for finding the affidavit established prob-
able cause. The court rejected Lantz’ claim that there were
material facts omitted from Crosby’s affidavit and further
found that even if probable cause was lacking, the evidence
would be admissible under the good faith exception of United
States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d
677 (1984).
3. Trial
Trial was held from August 6 through 9, 2012. The evidence
established that Lantz was born in May 1968 and that A.M.
and M.C. were born in July 1996. The carpet samples which
were seized pursuant to the search warrant, the DNA extracts
prepared by the Nebraska State Patrol crime laboratory from
the carpet samples, and the DNA report that was prepared
by the Nebraska State Patrol crime laboratory were admitted
at trial over defense objection. On each of the three carpet
samples, Lantz was included as a source for the sperm fraction
and as a major source for the epithelial fraction of the DNA
recovered. The probability of randomly selecting an unrelated
individual with a DNA profile matching that of the contributor
of the sperm and epithelial fractions in the carpet samples, and
of the sperm cells located on the inside of A.M.’s underwear,
was calculated at approximately 1 in 18.02 sextillion in the
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 687
Cite as 21 Neb. App. 679U.S. Caucasian population, 1 in 12.09 septillion in the African
American population, and 1 in 30.45 sextillion in the U.S.
Southwest Hispanic population.
A.M. testified as to the previous occasions that Lantz had
sexually assaulted her. According to A.M., the first time that
Lantz sexually assaulted her was on December 28, 2009. She
remembered the date of that first assault clearly because, that
same day, she had gotten a text message from her ex-boyfriend
saying “‘I love you,’” which message was special to her and
which she had saved on her cellular telephone for a while.
A.M. testified that similarly to the January 2011 incident,
the December 2009 assault also happened at night in the liv-
ing room. A.M. testified that she was lying on her stomach
on the couch watching television and had fallen asleep and
that when she woke up, Lantz was “fingering [her] vagina.”
A.M. stated that she was scared during the incident, so she
did not let Lantz know that she was awake. A.M. estimated
that the assault lasted 5 or 6 minutes, until Lantz went outside
to smoke a cigarette. A.M. stated that she did not tell anyone
about what had happened because she was scared that if Lantz
found out that she had told, he would “do something to [A.M.]
and [her] family.”
A.M. estimated that between the December 28, 2009, and
January 11, 2011, sexual assaults, there were approximately
20 to 25 other similar incidents, all taking place in the living
room, where A.M. would wake up and find Lantz’ finger was
in her vagina. Each time that A.M. would wake up during an
assault, she would pretend that she was still sleeping, because
she was scared. Other interactions with Lantz also troubled
A.M., such as when he gave her a leg massage, when he
appeared to be looking through a crack in the bathroom door
to watch her shower, and when she woke up from sleeping,
in her bed in her bedroom, and found Lantz was leaning over
her. After the incident where Lantz was leaning over her in
her bedroom, A.M. put a brick in front of her closed bedroom
door so that she would be able to tell if Lantz was entering her
room while she slept. A.M. testified that she made the brick at
Bible camp as a craft project and that it had a church, a cross,
and a heart on it. A.M. stated that she was able to determine
Decisions of the Nebraska Court of Appeals
688 21 NEBRASKA APPELLATE REPORTS
that Lantz was entering her room while she slept because the
brick was moved a couple of times, and when she and Lantz
talked about it, Lantz told her not to put the brick in front of
her bedroom door.
4. Alleged P rior Sexual
Assault Evidence
The State sought to offer evidence of similar offenses
of sexual assault by Lantz through testimony from Lantz’
ex-wife and his former stepdaughter, K.H. Prior to trial, an
evidentiary hearing as required by Neb. Rev. Stat. § 27-414(Cum. Supp. 2012) was held on March 27, 2012. Based
upon the evidence presented at the § 27-414 hearing, the
district court determined that the State had met its burden of
establishing the credibility of K.H.’s testimony by clear and
convincing evidence and that the probative value of the evi-
dence outweighed the danger of unfair prejudice. The court
also found that statutory factors under § 27-414(3) supported
admission of the evidence. Thus, the court determined that
K.H.’s testimony was admissible at trial.
When the State sought to introduce testimony from Lantz’
ex-wife and K.H. at trial, Lantz objected to his ex-wife’s tes-
timony based upon “Rules 403, 404, [and] 414”; the “August
[sic] 27,” 2012, evidentiary hearing; relevance and “related
rules”; and Lantz’ rights to due process and a fair trial. Lantz
further objected to K.H.’s testimony on the basis of violation
of “Rule 403, Rule 404, and Rule 414”; the March 27, 2012,
evidentiary hearing; and the violation of Lantz’ rights to due
process and a fair trial. Additionally, Lantz objected to the
trial court’s proposed limiting instruction on the basis that the
limiting instruction denied Lantz’ rights to due process and
a fair trial. These objections were all overruled, and Lantz
was given a continuing objection to both his ex-wife’s and
K.H.’s testimony.
Lantz’ ex-wife testified that she was married to Lantz from
May 2002 to November 2003. At the time of her marriage to
Lantz, she had three daughters; the youngest was K.H., who
was approximately 5 years old at that time. During her mar-
riage to Lantz, there were times that she and Lantz had to work
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 689
Cite as 21 Neb. App. 679different shifts for their jobs and K.H. would be left alone in
Lantz’ care while his ex-wife worked the day shift.
Prior to bringing K.H. before the jury, the court gave the
jury a limiting instruction regarding K.H.’s testimony which
provided, “The testimony of [K.H.] relates to [Lantz’] alleged
commission of other instances of sexual assault of a child and
may be considered for any relevant matter. However, evidence
of an alleged prior offense on its own is not sufficient to prove
[Lantz] guilty in this case.” K.H. was then brought before the
jury, where she testified that she was born in August 1997 and
that Lantz had been her stepfather. According to K.H., during
a time when she was between 4 and 6 years old, when she was
home alone with Lantz because her siblings were in school and
her mother was at work, Lantz touched her vagina with his
hand. K.H. could not remember if Lantz touched her vagina
more than once, if Lantz put his finger inside her vagina, or
if he touched her inside or outside of her underwear, and she
could not remember what season it was when Lantz touched
her inappropriately. She also testified that Lantz made her hold
his penis with her hand and that “white stuff” came out of his
penis. This happened when Lantz was sitting in a recliner in
the living room at their house and K.H. was in front of the
recliner. K.H. could not remember if Lantz had her hold his
penis more than once.
On cross-examination, K.H. testified that she remembered
being interviewed at a child advocacy center in February 2012,
but that she did “[n]ot really” remember telling the interviewers
nothing came out of Lantz’ penis when she held it in her hand
and that she “[s]omewhat” remembered telling the interviewers
that Lantz had touched her vagina over her clothing, not via
skin-to-skin contact. K.H.’s interview at the child advocacy
center was observed by Schmehl, who testified K.H. reported
in that interview that Lantz touched her over her clothing, not
via skin-to-skin contact, and that nothing came out of his penis
when she held it.
5. Alleged Juror Misconduct
During the trial, defense counsel brought to the court’s
attention that, after the conclusion of the direct examination of
Decisions of the Nebraska Court of Appeals
690 21 NEBRASKA APPELLATE REPORTS
A.M., prior to the start of cross-examination, and just before
a break in the trial, Lantz’ mother witnessed a concerning
interaction between a female juror and A.M. A hearing was
held in the court’s chambers with Lantz’ mother, the court,
counsel for the State, and defense counsel present and Lantz
not present. Lantz’ mother testified under oath that she saw
the female juror look at A.M. and give a “big smile and kind
of a half nod” and that then, when the juror turned her face
back and saw Lantz’ mother, the juror acted like she had not
“done anything.” According to Lantz’ mother, she felt like the
juror “acknowledged to [A.M.] that she did a good job.” Upon
questioning by the State, Lantz’ mother admitted that she had
been in attendance throughout the entire trial but that this was
the first type of interaction or exchange between this juror and
A.M. that she had witnessed.
Based upon the concerns raised by Lantz’ mother, the
juror was questioned in chambers regarding potential bias or
improper communication. The following colloquy occurred
between the district court and the juror, who was placed
under oath:
THE COURT: During the testimony this morning of
[A.M.], did you have any nonverbal communication with
[A.M.] while she was on the witness stand?
[Juror]: No. The only thing: If she would have looked
at me, I would have smiled in comfort. She looked like
someone in pain, and I would smile to comfort someone
in pain to support her. So if she looked at me — I don’t
know if she — I would have smiled, yes, and I might
have done that. (Juror getting teary-eyed.)
....
THE COURT: . . . During the whole process we
had with jury selection and so on, one of the things
that was mentioned, and I think also in the preliminary
instructions, was to make sure that you listened to all of
the evidence.
[Juror]: Uh-huh.
THE COURT: And not make up your mind until you
have heard all of the evidence. Do you still feel you’re
able to do that?
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 691
Cite as 21 Neb. App. 679[Juror]: Uh-huh.
THE COURT: That’s a yes?
[Juror]: Yes, yes. If I seem emotional, I am. I had no
prior knowledge to this. So when I’m hearing this, this is
for the first time and I am emotional. So it’s not —
....
THE COURT: . . . What you are telling me at the [sic]
point is if there was any gesture on your part directed
towards [A.M.], it may have been a smile at the con-
clusion of the testimony before we took the break as
a ­ omfort —
c
[Juror]: Yes, yes. . . .
The attorneys were also given the opportunity to ask the
juror questions, and defense counsel did, in fact, cross-examine
the juror. Upon cross-examination by defense counsel, the
juror stated that she did not have a recollection of nodding her
head or smiling at A.M. and that she did not mean to nod at
her; however, she stated that she was not denying having done
so, she just “didn’t make a point to.”
After the juror was escorted out of the judge’s chambers,
defense counsel moved to disqualify the juror and replace
her with an alternate. The district court denied the request,
stating:
I don’t see sufficient grounds at this point for disqualifi-
cation of the juror. I think a juror expressing some emo-
tion during a trial, particularly, one such as this, is only
being human. We ask a lot of jurors to — we don’t ask
them to be robots, and so the motion is denied.
Defense counsel responded to the district court’s ruling with a
clarifying statement: “I am not moving to disqualify this juror
because she has emotion. I am doing so because of her intent to
communicate with a witness. That is my position.” In response,
the district court stated, “[Y]ou have a point in the testimony
of [A.M.] that there was some, perhaps, intent on [the juror’s]
part, as she put it, to comfort, but I don’t think it rises to the
level of disqualification.”
The trial then resumed with the cross-examination of A.M.
Following the completion of A.M.’s testimony, the trial was
recessed for a lunch break. Following the lunch break, the
Decisions of the Nebraska Court of Appeals
692 21 NEBRASKA APPELLATE REPORTS
court, outside of the presence of the jury, was informed by
counsel that the same juror had given the bailiff a handwritten
note. The parties agreed that because the jury had been kept
waiting, the issue raised by the juror’s note would be taken up
at the next break.
During the next break, the issue of the juror’s handwritten
note was addressed. The note set forth:
In closed quarters I was asked about a head nod as I
was leaving the court room. I really had no recollection
of this at the time.
After thinking back I did recall making a head nod. As
I stood to leave the jury chair I noticed the juror behind
me had stood and left her water bottle. I recall gesturing
including a nod to draw her attention to her water bottle.
She quietly responded — “I think I’ll just leave it[.]”
I feel this gesture may have been misconstrude [sic] as
a gesture to [A.M.]
I just wanted to make you aware of this.
Defense counsel renewed his motion to disqualify the juror
and replace her with the alternate juror. The district court
again overruled the motion, stating, “[T]he Court stands by
the previous ruling, if anything, I believe this exhibit is
further basis not to grant the motion, and that the juror can
continue and be fair and impartial.” Following this ruling,
defense counsel moved for a mistrial on the bases that the
court’s ruling on the disqualification of the juror denied Lantz
the right to 12 unbiased jurors, in violation of his rights to due
process and a fair trial, and that the evidentiary ruling admit-
ting the testimony of Lantz’ ex-wife and K.H. invited the jury
to make a decision based upon reasons outside the trial of the
elements, thereby denying Lantz his rights to due process and
a fair trial. The motion for mistrial was overruled, and the
trial continued.
6. Conclusion of Trial
and Sentencing
After the State rested its case in chief, Lantz renewed his
motion to suppress and moved to strike “the evidence in
this case, the testimony and exhibits concerning the search”
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 693
Cite as 21 Neb. App. 679of Lantz’ residence, on the basis that they violated Lantz’
Fourth Amendment rights under both the U.S. and Nebraska
Constitutions. The district court overruled this motion. Lantz
then renewed his motion for mistrial on the grounds previously
stated, i.e., that the testimony of his ex-wife and K.H. and the
refusal of the disqualification of the juror denied him his rights
to due process and a fair trial, which motion was overruled.
Lantz then presented evidence in his defense, including testify-
ing in his own behalf. Lantz denied sexually assaulting A.M.
and M.C.
The jury convicted Lantz of the charged offenses, and there-
after, he was sentenced to an aggregate term of imprisonment
of not less than 30 years, mandatory minimum term, nor more
than 50 years. Specifically, on count I, Lantz was sentenced to
15 to 25 years’ imprisonment with credit for 149 days served.
On count II, Lantz was sentenced to 15 to 25 years’ imprison-
ment with the sentence ordered to run consecutively to that for
count I. On count III, Lantz was sentenced to 15 to 25 years’
imprisonment with the sentence ordered to run concurrently
with the sentences for counts I and II. However, the written
order of sentence differed from the oral pronouncement of
sentence in that in the written order, in addition to being given
credit for 149 days served on count I, Lantz was also granted
credit for 149 days served on count III.
III. ASSIGNMENTS OF ERROR
On appeal, Lantz contends that the district court erred (1) in
denying his motion to suppress, (2) in admitting evidence of
prior sexual assaults, and (3) in failing to remove a juror who
overtly demonstrated sympathy and bias.
IV. ANALYSIS
1. Denial of Motion to Suppress
Lantz contends that the district court erred in denying his
motion to suppress evidence obtained in a search of his resi-
dence. He contends that the search, conducted more than 14
months after Lantz was arrested, was illegal because it was
based upon a warrant (1) issued upon stale allegations and
(2) which omitted material facts, i.e., that A.M. had already
Decisions of the Nebraska Court of Appeals
694 21 NEBRASKA APPELLATE REPORTS
testified under oath that she was never assaulted in her bed-
room, but only when she slept in the living room.
[1-4] To be valid, a search warrant must be supported by an
affidavit which establishes probable cause. State v. Lee, 265
Neb. 663, 658 N.W.2d 669 (2003); State v. Ortiz, 257 Neb.
784, 600 N.W.2d 805 (1999). Probable cause sufficient to jus-
tify issuance of a search warrant means a fair probability that
contraband or evidence of a crime will be found. State v. Lee,
supra; State v. Ortiz, supra; State v. Craven, 253 Neb. 601,
571 N.W.2d 612 (1997). Proof of probable cause justifying
issuance of a search warrant generally must consist of facts
so closely related to the time of issuance of the warrant as to
justify a finding of probable cause at that time. State v. Lee,
supra. Probable cause to search is determined by a standard
of objective reasonableness, that is, whether known facts and
circumstances are sufficient to warrant a person of reasonable
prudence in a belief that contraband or evidence of a crime will
be found. Id.; State v. Craven, supra.[5,6] In reviewing the strength of an affidavit submitted as
a basis for finding probable cause to issue a search warrant, an
appellate court applies a “totality of the circumstances” rule
whereby the question is whether, under the totality of the cir-
cumstances illustrated by the affidavit, the issuing magistrate
had a substantial basis for finding that the affidavit established
probable cause. State v. Ortiz, supra. As a general rule, an
appellate court is restricted to consideration of the informa-
tion and circumstances found within the four corners of the
­affidavit. Id.(a) Staleness
[7,8] Lantz’ first argument regarding probable cause in issu-
ing the search warrant is that the information in the affidavit
to support the warrant was stale based upon the approximate
14-month time period between his January 11, 2011, arrest and
the execution of the search warrant on March 29, 2012.
“‘“[T]here is no bright-line test for determining when
information is stale. Whether the averments in an affi-
davit are sufficiently timely to establish probable cause
depends on the particular circumstances of the case,
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 695
Cite as 21 Neb. App. 679and the vitality of probable cause cannot be quantified
by simply counting the number of days between the
occurrence of the facts supplied and the issuance of the
affidavit. Time factors must be examined in the context
of a specific case and the nature of the crime under
i
­nvestigation.” . . .’”
State v. Bossow, 274 Neb. 836, 848, 744 N.W.2d 43, 53
(2008), quoting State v. Faber, 264 Neb. 198, 647 N.W.2d 67(2002). Where the facts contained in an affidavit indicate an
isolated violation of the law, it would not be unreasonable to
imply that probable cause dwindles rather quickly with the
passage of time; however, where the facts contained in an
affidavit indicate protracted and continuous criminal activity
or, in other words, a course of conduct, the passage of time
becomes less significant. See, State v. Bossow, supra; State v.
Faber, supra.“The ultimate criterion in determining the degree of
evaporation of probable cause . . . is not case law but
reason. The likelihood that the evidence sought is still
in place is a function not simply of watch and calendar
but of variables that do not punch a clock: the charac-
ter of the crime . . . , of the criminal . . . , of the thing
to be seized . . . , of the place to be searched . . . , etc.
The observation of a half-smoked marijuana cigarette in
an ashtray at a cocktail party may well be stale the day
after the cleaning lady has been in; the observation of the
burial of a corpse in a cellar may well not be stale three
decades later. The hare and the tortoise do not disappear
at the same rate of speed.”
State v. Groves, 239 Neb. 660, 680, 477 N.W.2d 789, 802-03
(1991) (Shanahan, J., concurring; Caporale, J., joins), quoting
Andresen v. State, 24 Md. App. 128, 331 A.2d 78 (1975). Thus,
staleness must be determined by the character or nature of the
evidence sought.
For example, in State v. Bossow, supra, the Nebraska
Supreme Court held that a delay between information in the
affidavit establishing that three individuals saw marijuana
plants growing under a heat lamp at the defendant’s residence
and the issuance of a search warrant approximately 1 month
Decisions of the Nebraska Court of Appeals
696 21 NEBRASKA APPELLATE REPORTS
later did not render the search warrant too stale to establish
probable cause. The affidavit in support of the search war-
rant set forth that marijuana plants can take up to 22 weeks to
mature and can grow to over 8 feet tall. The largest marijuana
plant described in the affidavit was approximately 4 feet tall,
with the other plants much smaller than that, indicating that the
plants were in the early stages of development and unlikely to
be harvested in the near future or removed from the defend­
ant’s residence. Thus, the Nebraska Supreme Court held that
given the particular circumstances of the defendant’s case, the
passage of time was not fatal to the trial court’s finding of
probable cause.
Conversely, in State v. Reeder, 249 Neb. 207, 543 N.W.2d
429 (1996), overruled on other grounds, State v. Davidson,
260 Neb. 417, 618 N.W.2d 418 (2000), the Nebraska Supreme
Court held that information in an affidavit regarding the
defend­nt’s alleged prior drug activities which dated from 4
a
months to 10 years in the past was stale information and could
not be used to support probable cause for a warrant. Relying
on State v. Reeder, this court held similarly in State v. Valdez,
5 Neb. App. 506, 562 N.W.2d 64 (1997), finding that infor-
mation detailing a defendant’s alleged drug activities dating
6 months to 5 years prior to the affidavit was not so closely
related to the time of the issuance of the warrant as to justify a
finding of probable cause at that time.
Unlike the aforementioned cases, which concerned drug
activities, in the instant case, we are dealing with an affidavit
seeking biological or DNA evidence. By its nature, such evi-
dence is of a type that may be found years after its deposit. See
People v. Miller, 75 P.3d 1108, 1113 n.3 (Colo. 2003) (“[t]he
type of evidence and activity involved is important[; s]ome
types of evidence the police seek to obtain through a search
warrant may be relatively immune from becoming stale, for
example, DNA evidence at the specified location”). Although
Nebraska appellate courts have not considered the issue of the
staleness of information contained in the affidavit for a search
warrant seeking DNA or other biological evidence, the ques-
tion has been addressed by other state courts. For example,
in State v. Daniels, 234 Or. App. 533, 228 P.3d 695 (2010),
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 697
Cite as 21 Neb. App. 679the Oregon Court of Appeals held that facts contained in an
affidavit which included the defendant’s alleged sexual abuse
of adopted and biological daughters over 20 years prior and
a statement by a male foster child who, for a period of time
ending 9 months prior to the warrant application, had regularly
witnessed the defendant sexually abusing the child’s 13-year-
old sister by rubbing her crotch and vaginal area were sufficient
to justify a search warrant for photographs and videotapes. The
Oregon Court of Appeals noted that evidence of inculpatory
sexual activity, such as fluids on bedding or undergarments,
“unlike drugs, is not consumable or marketable, nor is it likely
to dissipate (DNA, for example, lasts for millennia); therefore,
it is not necessarily ‘stale’ after a short time.” Id. at 539, 228
P.3d at 699. Likewise, in State v. Lejeune, 277 Ga. 749, 594
S.E.2d 637 (2004), the Georgia Supreme Court held that facts
contained in an affidavit justifying a warrant to search a home
for a vise and for blood evidence were not stale where an
alleged murder occurred more than 5 years prior and where the
affidavit stated that there was a reasonable belief that the blood
evidence would still be found because blood does not degrade
when protected from the elements.
Lesser time periods between the crime and the affidavit
to obtain the search warrant were approved in Carruthers
v. State, 272 Ga. 306, 528 S.E.2d 217 (2000), overruled on
other grounds, Vergara v. State, 238 Ga. 175, 657 S.E.2d 863(2008); People v. Cullen, 695 P.2d 750 (Colo. App. 1984);
and State v. Veley, 37 Or. App. 235, 586 P.2d 1130 (1978). In
Carruthers v. State, supra, an affidavit used to obtain a war-
rant to search a murder defendant’s residence for a leather
jacket, a handgun, and bloodstained clothing was not stale,
even though the crime had occurred 6 months earlier, where
the affidavit stated specifically that the affiant had interviewed
the defendant’s accomplice 4 days earlier and had learned that
on the night of the murder, the defendant wore a leather jacket
to conceal blood on him, had washed bloody clothes rather
than discarding them, and had possessed a handgun and stated
specifically that the defendant had been incarcerated for most
of the time since the murder, suggesting that he would have
had limited opportunity to dispose of evidence. Likewise, in
Decisions of the Nebraska Court of Appeals
698 21 NEBRASKA APPELLATE REPORTS
People v. Cullen, supra, facts contained in an affidavit justify-
ing a warrant to search sites for evidence, including scientific
evidence such as hair, fibers, blood, and fingerprints, was not
stale even though the crimes were perpetrated 8 months prior
to the application for the search warrants. Similarly, in State
v. Veley, supra, the Oregon Court of Appeals found that an
affidavit used to obtain a warrant authorizing a search of a car
for semen stains on its seats was not stale even though the last
sexual act occurred over 90 days prior to the application for the
warrant, because semen stains were a condition that was likely
to continue for a prolonged period of time.
In the instant case, there were approximately 14 months
between the time of the last alleged sexual assault, which
occurred on January 11, 2011, and the execution of the search
warrant on March 29, 2012. Crosby’s affidavit in support of
the search warrant set forth that based upon his experience,
which included hundreds of previous investigations dealing
with child sexual assaults, child abuse or neglect, and child
pornography cases, biological evidence such as semen, blood,
vaginal secretions, and epithelial cells can be located years
after being placed on items such as fabric or carpet. The affi-
davit further set forth that biological evidence can be found in
places that are climate controlled, such as a house, apartment,
or commercial space such as an office building, by using tech-
nology referred to as an “alternative light source.” Because the
search warrant sought DNA evidence inside a residence, which
evidence was not likely to be degraded, the information con-
tained in the affidavit was not stale even though there had been
over 14 months between the last alleged sexual assault and the
execution of the search warrant. Therefore, this assignment of
error is without merit.
(b) Omission of Material Facts
Lantz’ second argument regarding probable cause in issuing
the search warrant is that Crosby’s affidavit in support of the
search warrant materially omitted the fact that A.M. testified
at the pretrial hearing, 4 months before the issuance of the
search warrant, that Lantz sexually assaulted her in the living
room only.
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 699
Cite as 21 Neb. App. 679[9-11] Omissions in an affidavit used to obtain a search war-
rant are considered to be misleading when the facts contained
in the omitted material tend to weaken or damage the infer-
ences which can logically be drawn from the facts as stated in
the affidavit. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897(2004), abrogated on other grounds, State v. Rogers, 277 Neb.
37, 760 N.W.2d 35 (2009). However, a defendant who seeks
to suppress evidence obtained under a search warrant has the
burden of establishing that the search warrant is invalid so that
evidence secured thereby may be suppressed. State v. Thomas,
supra. The role of an appellate court is to determine whether
the affidavit used to obtain a search warrant, if it contained the
omitted information, would still provide a magistrate or judge
with a substantial basis for concluding that probable cause
existed for the issuance of the warrant. Id. If a substantial basis
for probable cause would still exist, then the defendant’s argu-
ment fails. Id.As Crosby set forth in his affidavit in support of the search
warrant, A.M. believed that Lantz was coming into her bed-
room at night while she was asleep and she had placed a brick
by her bedroom door to try to determine if Lantz was entering
her bedroom at night while she was sleeping. Additionally,
Lantz’ semen was found on the inside crotch area of the under-
wear A.M. wore at the time of the last sexual assault, which
occurred on January 11, 2011. Based upon these facts, the
omission that A.M. had testified at the preliminary hearing that
no sexual assaults had occurred in her bedroom was not mis-
leading and a substantial basis for probable cause for issuance
of the search warrant existed. Consequently, Lantz’ argument
is without merit.
2. Admission of Evidence of
P rior Sexual Assaults
Lantz also contends that the district court erred in admitting
evidence of prior sexual assaults under “Rule 414” where there
was no clear and convincing evidence that the prior sexual
assaults occurred.
[12,13] Section 27-414 is a new Nebraska evidentiary rule
that became operative on January 1, 2010. State v. Craigie, 19
Decisions of the Nebraska Court of Appeals
700 21 NEBRASKA APPELLATE REPORTS
Neb. App. 790, 813 N.W.2d 521 (2012). In proceedings where
the Nebraska Evidence Rules apply, the admissibility of evi-
dence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a
factor in determining admissibility. State v. Valverde, 286 Neb.
280, 835 N.W.2d 732 (2013); State v. Kibbee, 284 Neb. 72,
815 N.W.2d 872 (2012). 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. State v. Valverde, supra;State v. Kibbee, supra.
Under § 27-414(1), evidence of a criminal defendant’s com-
mission of another sexual assault offense is admissible “if
there is clear and convincing evidence otherwise admissible
under the Nebraska Evidence Rules that the accused commit-
ted the other offense or offenses. If admissible, such evidence
may be considered for its bearing on any matter to which it
is relevant.”
Lantz contends that the State failed to establish by clear and
convincing evidence that the prior sexual assaults occurred,
because K.H. could not place the alleged sexual assaults in
context by season, date, or hour, except to state that the
assaults occurred before she started kindergarten at age 6; she
made inconsistent statements regarding whether Lantz touched
her via skin-to-skin contact or over her clothing and whether
Lantz ejaculated; and she delayed in reporting the alleged
assaults for over 8 years.
However, despite K.H.’s inability to provide details regard-
ing the exact timing of the assaults, which is common in the
testimony of a child attempting to recount traumatic events,
there were notable similarities between the prior acts involving
K.H. and the acts involving A.M.: Both victims were Lantz’
stepdaughters, both victims were under the age of majority
at the time the sexual assaults occurred, both victims were
sexually abused while they were alone with Lantz (except for
the last sexual assault alleged against A.M., which occurred
in the presence of M.C.), and the sexual assaults occurred in
the living rooms of the victims’ respective houses. Finally,
although the incidents with K.H. occurred at least 6 years prior
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 701
Cite as 21 Neb. App. 679to the first time that Lantz sexually assaulted A.M., the ques-
tion of whether evidence of other conduct “‘“is too remote in
time is largely within the discretion of the trial court. While
remoteness in time may weaken the value of the evidence,
such remoteness does not, in and of itself, necessarily justify
exclusion of the evidence.”’” State v. Valverde, 286 Neb. at
295, 835 N.W.2d at 744, quoting State v. Kibbee, supra. Thus,
the district court did not abuse its discretion in finding that the
State met its burden by clear and convincing evidence and this
assignment of error is without merit.
3. Failure to R emove Juror
Lantz contends that the district court erred in refusing to
remove a juror who had overtly demonstrated sympathy and
bias during his trial, thereby denying him his constitutional
right to an impartial jury.
[14] The issue of the retention of a juror after the com-
mencement of trial is a matter of discretion for the trial court.
See State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
[15] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence,
(1) the existence of jury misconduct and (2) that such mis-
conduct was prejudicial to the extent that the defendant was
denied a fair trial. State v. Harris, 264 Neb. 856, 652 N.W.2d
585 (2002); State v. Harrison, 264 Neb. 727, 651 N.W.2d
571 (2002); State v. Jackson, 255 Neb. 68, 582 N.W.2d 317(1998); State v. Anderson, 252 Neb. 675, 564 N.W.2d 581(1997) (specifically overruling State v. Owen, 2 Neb. App.
195, 508 N.W.2d 299 (1993), which had set forth height-
ened “clear and convincing” evidentiary standard for proving
prejudice in criminal jury misconduct cases). But see, State
v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abro-
gated on other grounds, State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010) (in criminal case involving juror behav-
ior only, burden to establish prejudice rests on party claim-
ing misconduct, which must be demonstrated by clear and
convincing evidence); State v. Thomas, 262 Neb. 985, 637
N.W.2d 632 (2002) (also setting forth “clear and convincing
evidence” standard).
Decisions of the Nebraska Court of Appeals
702 21 NEBRASKA APPELLATE REPORTS
[16-18] The competency of a juror is generally presumed,
and the burden is on the challenging party to establish other-
wise. State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998).
A trial judge is not required to excuse a juror when the juror
is able to decide the case fairly and impartially. See id. An
appellate court defers to the trial court’s decision whenever
a juror is unequivocal that he or she can be fair or impartial.
Howe v. Hinzman, 14 Neb. App. 544, 710 N.W.2d 669 (2006).
This rule applies both to the issue of whether a potential juror
should be removed for cause prior to trial and to the situation
of whether a juror should be removed after the trial has com-
menced. See id.In the instant case, once the concerns regarding the juror
were brought to the trial court’s attention, the court immedi-
ately addressed the issue by holding a hearing. The juror stated,
under oath, that she may have smiled at the witness, A.M., but
that she was not certain she did so and that she would not make
up her mind until she had heard all of the evidence in the case.
Further, in her note to the court, the juror denied nodding at
A.M., stating that she was gesturing to a fellow juror who had
forgotten a water bottle.
Because Lantz has alleged jury misconduct, he bears the
burden of proving, by a preponderance of the evidence, both
the existence of misconduct and prejudice to the extent that
he was denied a fair trial. He fails in both respects: He can-
not establish misconduct, because the juror denied nodding at
A.M. and could not remember if she smiled at A.M., and he
cannot establish prejudice, because the juror unequivocally
stated that she would not make up her mind as to Lantz’ guilt
or innocence until she heard all of the evidence in the case. The
district court held a hearing and carefully exercised its discre-
tion on this matter, and no abuse of that discretion is evidenced
by the record.
4. P lain Error R egarding
Sentencing
[19-21] In its brief and at oral argument, the State brought
to this court’s attention errors regarding Lantz’ sentencing,
which we address under our authority to note plain error. An
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 703
Cite as 21 Neb. App. 679appellate court always reserves the right to note plain error
which was not complained of at trial or on appeal. State v.
Scott, 284 Neb. 703, 824 N.W.2d 668 (2012); State v. Hilding,
278 Neb. 115, 769 N.W.2d 326 (2009). Consideration of
plain error occurs at the discretion of an appellate court.
State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012),
cert. denied ___ U.S. ___, 133 S. Ct. 2359, 185 L. Ed. 2d
1082 (2013); State v. Howell, 284 Neb. 559, 822 N.W.2d
391 (2012). Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a mis-
carriage of justice or result in damage to the integrity, reputa-
tion, and fairness of the judicial process. State v. Reinpold,
284 Neb. 950, 824 N.W.2d 713 (2013).
Lantz was convicted of three counts of first degree sexual
assault of a child, all Class IB felonies, which are punish-
able by 20 years’ to life imprisonment. See, Neb. Rev. Stat.
§ 28-105 (Reissue 2008); Neb. Rev. Stat. § 28-319.01 (Cum.
Supp. 2012) (first degree sexual assault of child). However,
although classified as a Class IB felony, first degree sexual
assault of a child carries a mandatory minimum sentence of 15
years’ imprisonment for the first offense. § 28-319.01(2).
On count I, Lantz was sentenced to 15 to 25 years’ imprison-
ment with credit for 149 days served. On count II, Lantz was
sentenced to 15 to 25 years’ imprisonment with the sentence
ordered to run consecutively to that for count I. On count III,
Lantz was sentenced to 15 to 25 years’ imprisonment with the
sentence ordered to run concurrently with the sentences for
counts I and II.
The State argued at oral argument that because Class IB fel-
onies carry a 20-year minimum term of imprisonment, Lantz’
sentences, which contain a 15-year mandatory minimum term
of imprisonment, were not within the statutory sentencing
range. The State contends that the sentencing statutes require
the minimum portion of Lantz’ sentences to be 20 years’
imprisonment, of which 15 years is a mandatory minimum
sentence not subject to good time. We disagree with the
State’s argument.
Decisions of the Nebraska Court of Appeals
704 21 NEBRASKA APPELLATE REPORTS
[22] Although § 28-105 sets forth that a Class IB felony is
punishable by 20 years’ to life imprisonment, § 28-319.01(2)
provides that even though classified as a Class IB felony, first
degree sexual assault of a child carries a mandatory minimum
sentence of 15 years’ imprisonment for the first offense. Since
the statutes provide for different minimum sentences for the
same offense, there is a conflict between the two statutes
regarding the minimum sentence for a conviction of first-
offense first degree sexual assault of a child. When there is
a conflict between statutes, we are guided by the principle
that to the extent there is a conflict between two statutes,
the specific statute controls over the general statute. State v.
Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012). In this
circumstance, the Legislature has made a specific provision
that the offense of first-offense first degree sexual assault of
a child, even though classified as a Class IB felony, carries
a mandatory minimum sentence of 15 years’ imprisonment.
This specific statute controls over the general statute regarding
sentences providing for a 20-year minimum term of imprison-
ment. See State v. Fleming, 280 Neb. 967, 982, 792 N.W.2d
147, 159 (2010) (defendant’s 20- to 40-year sentences for two
convictions of first degree sexual assault of child were not
excessive where minimum sentence was “just 5 years more
than the mandatory minimum for the crimes for which he
was convicted”).
[23,24] Although each of the sentences imposed was within
the statutory sentencing range, the portion of the sentencing
order providing that the sentence for count III was to run
concurrently with the sentences for counts I and II contradicts
the Nebraska Supreme Court’s holding in State v. Castillas,
285 Neb. 174, 826 N.W.2d 255 (2013), which provides that
the sentence for any conviction carrying a mandatory mini-
mum sentence must be ordered to be served consecutively.
“Mandatory minimum sentences cannot be served concur-
rently. A defendant convicted of multiple counts each carry-
ing a mandatory minimum sentence must serve the sentence
on each count consecutively.” Id. at 191, 826 N.W.2d at 268.
Thus, we must remand with directions that the district court
resentence Lantz on count III to provide that this sentence
Decisions of the Nebraska Court of Appeals
STATE v. LANTZ 705
Cite as 21 Neb. App. 679must be served consecutively to those for counts I and II.
See, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006)
(appellate court has power on direct appeal to remand cause for
imposition of lawful sentence where erroneous one has been
pronounced); State v. Wilson, 16 Neb. App. 878, 754 N.W.2d
780 (2008).
[25-27] Additionally, we note that the written sentencing
order differs from the court’s oral sentencing pronouncement
by providing that Lantz is to receive credit for 149 days served
on count III. A sentence validly imposed takes effect from
the time it is pronounced. State v. Marrs, 272 Neb. 573, 723
N.W.2d 499 (2006). When a valid sentence has been put into
execution, the trial court cannot modify, amend, or revise it in
any way, either during or after the term or session of court at
which the sentence was imposed. Id. When there is a conflict
between the record of a judgment and the verbatim record
of the proceedings in open court, the latter prevails. State v.
Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999). Because
the district court orally pronounced valid sentences, the oral
pronouncement controls and, upon remand, Lantz will not
receive credit for time served on count III.
V. CONCLUSION
Having considered and rejected Lantz’ assignments of error,
we affirm his convictions. Additionally, Lantz’ sentences are
affirmed with the following exception: We vacate the por-
tion of Lantz’ sentence on count III where the court ordered
the sentences to run concurrently and remand the cause with
directions for the court to order the sentences to be served
consecutively.
Affirmed in part, and in part vacated
and remanded for resentencing.