State v. Berger , 31 Neb. Ct. App. 379 ( 2022 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BERGER
Cite as 31 Neb. App. 379State of Nebraska, appellee, v.
Gregory T. Berger, appellant.
___ N.W.2d ___
Filed September 27, 2022. No. A-21-402.
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. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
6. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
a trial court’s ruling to admit or exclude an expert’s testimony for abuse
of discretion.
7. Records: Appeal and Error. The procedure set forth in State v.
Trammell, 231 Neb. 137, 435 N.W.2d 197 (1989), does not address,
and therefore does not prevent, a defendant’s request that the records
reviewed be sealed and included as part of an appellate record.
8. ____: ____. It is incumbent upon an appellant to supply a record which
supports his or her appeal. Absent such a record, as a general rule, the
decision of the lower court as to those errors is to be affirmed.
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Cite as 31 Neb. App. 3799. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
10. Rules of Evidence: Expert Witnesses. When a court is faced with a
decision regarding the admissibility of expert opinion evidence, the
trial judge must determine at the outset, in accordance with Neb. Evid.
R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), whether the expert
is proposing to testify to (1) scientific, technical, or other specialized
knowledge that (2) will assist the trier of fact to understand or determine
a fact in issue.
11. ____: ____. A determination of whether an expert’s opinion would assist
the trier of fact initially requires a determination of relevance.
12. ____: ____. Most trial court rulings excluding expert testimony can be
explained as findings by the court that the issue is inappropriate for
expert resolution, either because the expert is not needed for the jury to
resolve the issue or because the expert is incapable of rendering mean-
ingful assistance.
13. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. The
trial court’s determination of whether an expert’s testimony will be help-
ful to the jury or assist the trier of fact in accordance with Neb. Evid. R.
702, Neb. Rev. Stat. § 27-702 (Reissue 2016), is a determination involv-
ing the discretion of the trial court, whose ruling on the admissibility of
an expert’s testimony or opinion will be upheld on appeal unless the trial
court abused its discretion.
14. Trial: Rules of Evidence: Expert Witnesses. When an expert’s opin-
ion on a disputed issue is merely a conclusion which may be deduced
equally well by the trier of fact with sufficient evidence on the issue,
the expert’s opinion is superfluous and does not assist the trier of fact in
determining the factual issue or understanding the evidence.
15. Trial: Expert Witnesses. It is within the trial court’s discretion to deter-
mine whether there is sufficient foundation for an expert witness to give
his or her opinion about an issue in question.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Joseph L. Howard, of Dornan, Troia, Howard, Breitkreutz,
Conway & Dahlquist, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, Chief Judge, and Bishop and Welch, Judges.
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Nebraska Court of Appeals Advance Sheets
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STATE V. BERGER
Cite as 31 Neb. App. 379Pirtle, Chief Judge.
INTRODUCTION
Gregory T. Berger appeals his convictions in the district
court for Douglas County for two counts of first degree sexual
assault of a child and one count of third degree sexual assault
of a child. Berger claims that the trial court erred in not releas-
ing the victims’ medical and therapy records to his expert wit-
ness and in not allowing his expert witness to testify. Based on
the reasons that follow, we affirm.
BACKGROUND
Procedural History.
On November 30, 2018, the State filed an information charg-
ing Berger with two counts of first degree sexual assault of a
child and one count of third degree sexual assault of a child.
The information alleged that Berger had sexually assaulted two
victims, E.A. and T.H., between 2006 and 2011. The victims
were between the ages of 3 and 7 at the time of their respective
assaults. E.A. is Berger’s biological daughter and T.H. is E.A.’s
half sister. The victims have the same mother.
On July 6, 2019, Berger filed a motion to compel, seeking
production of E.A.’s medical records from her former primary
care physician, mental health records from her former thera-
pist, and school records from her elementary school, including
records from the school’s counselor. That same day, Berger
filed another motion to compel, seeking production of E.A.’s
therapy records from Stefanie Armstrong and Cathy Schweitzer,
who both work at The Attachment and Trauma Center (ATC) in
Omaha, Nebraska. Berger asked that the records be sent to the
court for an in camera review to determine whether they were
relevant and had any evidentiary value in terms of the weight
and credibility of E.A.
On July 26, 2019, Berger filed another motion to compel,
seeking production of T.H.’s treatment, medical, and mental
health records from Dr. Anne Tapley, Dr. Robert Arias, and
Bryan Hospital. Berger again asked that the records be sent to
the court for an in camera review.
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Cite as 31 Neb. App. 379On August 27, 2019, following a hearing, the court entered
an order disposing of the motions to compel. In regard to the
motion to compel production of records from E.A.’s former
primary care physician, E.A.’s former therapist, and E.A.’s
elementary school, the court denied the motion. In regard to
the motion to compel production of records from Armstrong
and Schweitzer at ATC, the court granted the motion in part,
ordering that therapy records from the date of disclosure in
March 2018 to the present be provided to the court for an
in camera review. As to the motion to compel production of
T.H.’s records from Tapley, Arias, and Bryan Hospital, the
court denied the motion.
Thereafter, E.A.’s adoptive mother executed a release of
E.A.’s therapy records from ATC from March 2018 to the
present for purposes of an in camera review by the court and
Berger subsequently subpoenaed the records from ATC.
On November 5, 2019, the State filed a motion in limine,
seeking to prevent Berger “from adducing any expert witness
testimony at trial regarding the credibility or reliability of the
victims’ accu[s]ations.” The State specifically requested that
the court issue an order preventing Dr. Terry A. Davis from
testifying.
In January 2020, the district court completed its in camera
review of E.A.’s therapy records from ATC and denied Berger’s
motion to compel production of those records. At a hearing on
February 25, the court stated that it had reviewed the records
from ATC and it received them into evidence as exhibit 1. The
court also ordered that the exhibit be sealed.
In February 2020, Berger deposed Armstrong and Schweitzer,
E.A.’s therapists from ATC. Following the depositions, Berger
filed another motion to compel, seeking production of E.A.’s
treatment records from counselor Mary Ellen Anderson, Dr.
Loren Conaway, and Boys Town Residential Treatment Center.
Berger requested the trial court to review those records in
camera to determine if they were relevant and had any evi-
dentiary value in terms of the weight and credibility of E.A.’s
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Cite as 31 Neb. App. 379accusations. In support of the motion, Berger submitted that in
deposing Armstrong he learned that (1) E.A. was diagnosed in
2011 with post-traumatic stress disorder (PTSD), attention def-
icit hyperactivity disorder, and reactive attachment disorder by
Anderson; (2) E.A. underwent a psychological evaluation with
Conaway; (3) E.A. was admitted to Boys Town Residential
Treatment Center from March 5 to June 18, 2019; and (4)
E.A.’s biological mother may be bipolar, which can be heredi-
tary. E.A.’s adoptive mother subsequently executed a release to
the court for the requested records.
On March 2, 2020, Berger subpoenaed E.A.’s medical and
counseling records from Anderson, Conaway, and Boys Town
Residential Treatment Center. Berger also subpoenaed medical
and counseling records related to T.H. from Tapley, Arias, and
Bryan Hospital.
On February 17, 2021, the trial court held a hearing on
the State’s motion in limine to prevent Berger from present-
ing any expert witness testimony regarding the credibility
of the victims’ accusations. Berger offered four exhibits into
evidence, which included Davis’ psychiatric opinion report
of E.A. Davis also testified at the hearing. The court then
granted the State’s motion in limine, finding that Davis did
not have a sufficient underlying foundation on which to base
an expert opinion.
On February 27, 2021, Berger filed a motion to release
sealed records and a renewal of motions to release the victims’
mental health records. In regard to the motion to release sealed
records, he asked the court to release the sealed records in the
court’s custody and control from Conaway, Anderson, Boys
Town Residential Treatment Center, Bryan Hospital, and Arias.
The motion stated that Davis had determined that E.A. and T.H.
suffer from mental health disorders that can affect memory and
cause untruthful testimony. Berger argued that releasing the
sealed mental health records would cure the court’s concern
that the records reviewed by Davis were insufficient to form
an expert opinion.
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STATE V. BERGER
Cite as 31 Neb. App. 379As to the renewal of motions to release the victims’ mental
health records, Berger renewed his motions to compel the pro-
duction of records filed February 23 and July 26, 2019, and
requested that these records be released to Davis. The July 26
motion to compel sought production of T.H.’s records from
Tapley, Arias, and Bryan Hospital. The February 23 motion to
compel is not in the record before us.
A hearing on Berger’s motion to release sealed records and
the renewal of motions to release the victims’ mental health
records was held on March 1, 2021. The court overruled
the motions, but allowed Berger to make an offer of proof.
Berger offered into evidence a neuropsychological report on
E.A. dated July 31, 2017, and a summary of T.H.’s treat-
ment from Tapley addressed to an Omaha police detective
and dated September 5, 2018. Both of these exhibits had been
reviewed by Davis. The exhibits were received for purposes
of the hearing and sealed. Berger also asked the court to take
judicial notice of Davis’ curriculum vitae and his report, both
of which were offered into evidence at a prior hearing. Berger
stated that if Davis were allowed to review the sealed records
and testify, he would state an opinion as to whether or not the
records support a specific diagnosis and how that diagnosis
could affect credibility, memory, and cognition. The court
accepted Berger’s offer of proof, and it again overruled the
motion to release sealed records and the renewal of motions to
release the victims’ mental health records.
Trial.
Berger’s trial began on March 1, 2021. The State called
12 witnesses, including both of the victims. After the State
rested, Berger asked to do an offer of proof in regard to the
court’s previous ruling on the State’s motion in limine regard-
ing E.A.’s mental health diagnosis. Berger called Armstrong
to testify. Following Armstrong’s testimony, Berger offered
that evidence as an offer of proof and asked the court to
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STATE V. BERGER
Cite as 31 Neb. App. 379reconsider its admission. The court stated that it was not
changing its ruling.
Berger next asked the court to dismiss the three counts
against him, arguing that the State failed to meet its burden of
proof. The court overruled the motion.
Berger then also offered a transcript of the February 21,
2021, motion in limine hearing where Davis testified and stated
that if called to testify, Davis’ testimony would be substantially
similar to his previous testimony. Berger renewed his offer of
proof, and the court stated the motion was still overruled.
Relationship of Victims.
Amy K. is the mother of E.A. and T.H. Amy divorced T.H.’s
biologial father shortly before T.H. was born in September
2001. T.H. initially lived with Amy but began living with her
biological father after Amy, who has a history of mental health
problems, became unstable.
In 2003, Amy began dating Berger. Amy and Berger moved
in together and eventually had E.A., born in May 2004, as well
as another child. T.H. would sometimes visit Amy and Berger
on weekends and holidays.
Amy tesified that her mental health deteriorated and that
in February 2008, she left Berger and soon lost contact with
E.A. and T.H. After Amy left, T.H. had no further contact with
Berger or E.A. and T.H. continued living with her biologi-
cal father. Berger subsequently began dating DeAnn E., who
moved in with him in mid- to late 2008.
In January 2011, Child Protective Services removed E.A.
from Berger’s home. That same day, she was placed with
Berger’s parents, who became her foster parents. In October
2011, Berger’s parental rights were terminated. A month later,
E.A. started therapy with Armstrong.
In July 2012, E.A. began living with the couple that even-
tually adopted her. T.H. continued to live with her biologi-
cal father.
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Cite as 31 Neb. App. 379E.A. and T.H. both eventually reconnected with Amy, but
at different times. T.H. contacted Amy through social media
in early 2018, without her biological father’s knowledge. E.A.
contacted Amy by letter in late 2019. All of E.A.’s contacts
with Amy were closely monitored by her adoptive parents.
E.A.’s Disclosure.
On March 7, 2018, E.A., who was 13 years old at the time,
told her adoptive parents that she had been sexually assaulted
by Berger. Her adoptive mother contacted Armstrong, as well
as the Omaha Police Department.
On March 12, 2018, E.A. met with Armstrong and told her
that when E.A. was 4 years old, Berger had sexually assaulted
her while DeAnn held her arms over her head. Armstrong
immediately stopped the therapy session and instructed E.A.’s
adoptive parents to contact law enforcement, which they did.
That evening, an Omaha police officer spoke with E.A. A week
later, E.A. was interviewed at a child advocacy center.
At trial, E.A. testified that Berger repeatedly sexually
assaulted her when she was 4 to 6 years old. Most of the
assaults occurred in her bedroom. On each occasion, Berger
removed her pants and underwear and either rubbed her vagina
with his hand or removed his pants and underwear and touched
her vagina with his penis. She recalled one incident in which
Berger crawled toward her on his hands and knees, grabbing
her arms as she tried to back away, and another incident in
which he choked her with one hand as he rubbed her vagina
with the other. In addition, E.A. recalled an incident in which
DeAnn held her wrists above her head while Berger penetrated
her vagina with his fingers.
E.A. also recalled two assaults that occurred in the bath-
room. On both occasions, Berger walked in as she was getting
out of the shower. When she attempted to cover herself with
the shower curtain, Berger pulled it away and told her to bend
over the toilet with her face toward the back of the toilet. He
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STATE V. BERGER
Cite as 31 Neb. App. 379then unzipped his pants, placed his hands on her hips, and
inserted his penis into her vagina.
T.H.’s Disclosure.
In early 2018, T.H. was having some personal problems and
reached out to Amy through social media. T.H. testified that at
one point Amy stated that Berger was an “asshole,” which T.H.
inferred was an acknowledgment that Amy knew Berger had
sexually abused her.
In April 2018, T.H. wrote a note to her high school basket-
ball coach which stated in part that she had talked to her birth
mother, Amy, who disclosed that she knew Berger had sexu-
ally abused her. The coach turned the note over to the school
principal.
The school guidance counselor subsequently contacted T.H.
and spoke with her about the note. T.H. was resistant to talk
at first but eventually disclosed that she had been sexually
abused. Specifically, she stated that Berger had separated her
from her siblings and touched her genital area.
On June 28, 2020, T.H. was interviewed at a child advocacy
center and disclosed that she had been sexually abused. Two
months later, she spoke to an Omaha police detective on the
phone and disclosed additional details about the abuse.
At trial, T.H. testified that Berger repeatedly sexually
assaulted her when Amy lived with Berger and T.H. would
come to visit. Most of the assaults occurred in the living room
or in Berger’s bedroom. Typically, Berger would sit next to her
on the couch or lie next to her on the bed, slide his hand inside
her pants, and massage her vagina. T.H. recalled one occasion
where Berger lay next to her on the bed, pulled down her pants
and underwear, and tried to insert his finger into her vagina.
T.H. also recalled an incident that occurred in the garage.
T.H. went into the garage where Berger was working on his
car. Berger grabbed her arm, placed her face down on the back
seat, and pulled down her pants. He then inserted his penis into
her anus.
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Cite as 31 Neb. App. 379Other State Evidence.
Armstrong testified generally about children who have suf-
fered significant trauma, not just sexual abuse, by a caregiver.
She testified that children who have suffered a trauma present
with a wide range of behaviors and that is why children typi-
cally come to her with many different diagnoses. Armstrong
stated that a child may struggle with attachment, especially
if the trauma was caused by an adult caregiver. Lying, often
about trivial things, is one behavior she has seen from trau-
matized children. She also stated that children sometimes tell
“made-up stories” or “tall tales,” but not typically in regard to
a trauma. Armstrong testified that it is common for children
to delay reporting or disclosing trauma because they often do
not trust adults. In her experience, it is not uncommon to see
a delay of years before a child opens up about a trauma. She
also stated that children often will talk about sexual abuse
when they reach their teenage years because puberty often trig-
gers memories.
The director of children’s services at a child advocacy cen-
ter also testified. Like Armstrong, she explained why children
often do not disclose abuse right away. She also testified that
disclosure is a process, not an event, and that children may
have difficulty recalling individual incidents when the abuse
occurred repeatedly over an extended period.
Berger’s Evidence.
Berger testified in his own defense and generally denied
the allegations. He also called two witnesses to corroborate
portions of his testimony. All three specifically testified, con-
trary to T.H.’s testimony, that Berger never parked his car in
the garage because there was no room to park it there. It was
always parked in the driveway.
Outcome.
The case was submitted to the jury, and it returned guilty
verdicts on all three counts. The court accepted the jury ver-
dicts and adjudged Berger guilty of the offenses.
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Cite as 31 Neb. App. 379The court subsequently sentenced Berger to 20 to 30 years’
imprisonment on count 1 (first degree sexual assault of a child),
20 to 30 years’ imprisonment on count 2 (first degree sexual
assault of a child), and 3 to 3 years’ imprisonment on count 3
(third degree sexual assault of a child). It ordered the sentences
on counts 1 and 2 to run consecutively to one another and the
sentence on count 3 to run concurrently.
ASSIGNMENTS OF ERROR
Berger assigns that the trial court erred in (1) not releasing
the victims’ medical and therapy records to his expert witness,
(2) ruling prior to trial that his expert witness’ testimony was
inadmissible, and (3) not allowing his expert witness to provide
rebuttal testimony.
STANDARD 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 admis-
sibility. State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. State v. Said, supra.[3-5] A trial court exercises its discretion in determining
whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value. Id. An abuse of
discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. Id.A trial court’s determination of the relevancy and admissibil-
ity of evidence must be upheld in the absence of an abuse of
discretion. Id.[6] An appellate court reviews a trial court’s ruling to admit
or exclude an expert’s testimony for abuse of discretion. State
v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).
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STATE V. BERGER
Cite as 31 Neb. App. 379ANALYSIS
Refusal to Release Medical and
Therapy Records to Davis.
Berger first assigns that the district court erred in failing
to release the victims’ medical and therapy records to Davis,
Berger’s expert. He claims that such denial violated the Sixth
Amendment Confrontation Clause and Compulsory Process
Clause. He argues that by not allowing his expert access to this
“potentially exculpatory treasure trove,” the court denied him
the ability to adequately present a defense. Brief for appellant
at 37. He contends that releasing the in camera medical and
therapy records to Davis was a precursor to Davis’ being able
to articulate the exact psychological and mental health issues
the victims were suffering.
The Nebraska Supreme Court set forth the procedure for
obtaining privileged medical records in State v. Trammell, 231
Neb. 137, 435 N.W.2d 197 (1989). The procedure is derived
from State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984).
In Esposito, the Connecticut Supreme Court detailed the proc­
ess to be used for review of a witness’ privileged records.
It explained:
If, however, the claimed impeaching information is privi-
leged there must be a showing that there is reasonable
ground to believe that the failure to produce the informa-
tion is likely to impair the defendant’s right of confron-
tation such that the witness’ direct testimony should be
stricken. Upon such a showing the court may then afford
the state an opportunity to secure the consent of the wit-
ness for the court to conduct an in camera inspection of
the claimed information and, if necessary, to turn over
to the defendant any relevant material for the purposes
of cross-examination. If the defendant does make such
showing and such consent is not forthcoming then the
court may be obliged to strike the testimony of the wit-
ness. If the consent is limited to an in camera inspection
and such inspection, in the opinion of the trial judge, does
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Cite as 31 Neb. App. 379not disclose relevant material then the resealed record is
to be made available for inspection on appellate review.
If the in camera inspection does reveal relevant material
then the witness should be given an opportunity to decide
whether to consent to release of such material to the
defendant or to face having [the] testimony stricken in the
event of refusal.
Id. at 179-80, 471 A.2d at 956 (emphasis supplied). In adopt-
ing the Connecticut Supreme Court’s procedure, the Nebraska
Supreme Court omitted the italicized language, using ellipses,
presumably because the issue presented involved the initial
procedure of producing the records, not what should occur if
some or all of the records were withheld. See State v. Santos-
Romero, 31 Neb. App. 14, 974 N.W.2d 624 (2022).
We first focus on E.A.’s therapy records created by
Armstrong and Schweitzer, E.A.’s therapists from ATC. The
trial court completed its in camera review of these records and
denied Berger’s motion to compel production of the records,
finding that the records did not contain relevant material. The
court later received the records as exhibit 1 and ordered that it
be sealed.
We have reviewed exhibit 1 and agree with the trial court
that it does not include relevant information. The only diagno-
sis in exhibit 1 is PTSD. Based on Davis’ report, he was aware
from other sources he reviewed that E.A. had been diagnosed
with PTSD. As will be further discussed later in this opinion,
when Davis testified at the motion in limine hearing, he did
not state that PTSD can affect one’s truthfulness or credibility.
He was asked which of E.A.’s diagnoses could be attributed to
a person’s being less likely to give truthful testimony, and he
stated only borderline personality disorder, oppositional defiant
disorder, or conduct disorder. Therefore, without any informa-
tion in exhibit 1 about these three diagnoses, the exhibit was
not relevant to the issue of E.A.’s credibility. Accordingly, we
conclude that the trial court did not err in refusing to release
E.A.’s therapy records from ATC to Davis.
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Cite as 31 Neb. App. 379The other records that Berger claims the court erred in refus-
ing to release are those Berger subpoenaed on March 2, 2020,
including T.H.’s therapy and medical records from Tapley,
Arias, and Bryan Hospital, and E.A.’s therapy and medical
records from Anderson, Conaway, and Boys Town Residential
Center. Berger questions whether the trial court received all of
the medical records it was supposed to receive and whether an
in camera review was conducted. He asks us to review the in
camera sealed records to determine if the court reviewed all the
records that were subpoenaed to the court’s chambers.
[7,8] The records Berger subpoenaed on March 2, 2020,
are not part of the appellate record before us. None of these
requested records were received into evidence and sealed as
the ATC records were. Accordingly, the record does not reveal
whether the trial court received the records or whether an
in camera review was conducted. There is nothing for us to
review. The procedure set forth in State v. Trammell, 231 Neb.
137, 435 N.W.2d 197 (1989), does not address, and there-
fore does not prevent, a defendant’s request that the records
reviewed be sealed and included as part of an appellate record.
See State v. Santos-Romero, supra. In fact, State v. Esposito,
192 Conn. 166, 471 A.2d 949 (1984), on which the Trammell
procedure was derived, anticipates such action. It is incumbent
upon an appellant to supply a record which supports his or her
appeal. State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
Absent such a record, as a general rule, the decision of the
lower court as to those errors is to be affirmed. Id. Berger has
failed to provide us with a record that supports his argument
on appeal.
We conclude that Berger’s first assignment of error fails.
Pretrial Ruling to Exclude
Davis’ Testimony.
Again relying on the Sixth Amendment Confrontation
Clause and Compulsory Process Clause, Berger next assigns
that the trial court erred in ruling prior to trial that Davis’
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Cite as 31 Neb. App. 379testimony was inadmissible. Berger’s assignment of error is
based on the court’s granting the State’s motion in limine to
prevent Berger from adducing any expert witness testimony
at trial regarding the credibility or reliability of the victims’
accusations. Berger argues that the court had no evidence to
conclude that Davis’ testimony would confuse or negatively
affect the jurors. He also contends that he laid the foundation
and legal reasoning as to why Davis should have been allowed
to testify.
[9] Evidence which is not relevant is not admissible. Neb.
Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016). And,
“[a]lthough relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Neb. Evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2016). Unfair prejudice
means an undue tendency to suggest a decision based on
an improper basis. State v. Said, 306 Neb. 314, 945 N.W.2d
152 (2020).
Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016),
governs the admissibility of expert testimony and provides: “If
scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise.”
[10] When a court is faced with a decision regarding the
admissibility of expert opinion evidence, the trial judge must
determine at the outset, in accordance with rule 702, whether
the expert is proposing to testify to (1) scientific, technical, or
other specialized knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue. Kirkwood v. State,
16 Neb. App. 459, 748 N.W.2d 83 (2008).
At the hearing on the State’s motion in limine to pre-
vent Davis from testifying, Berger offered four exhibits into
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Cite as 31 Neb. App. 379evidence, including Davis’ report. In his report, Davis listed
the various materials that he reviewed, summarized the per-
tinent portions, and listed the psychiatric diagnoses that each
victim had been given at some point in the past. Davis
opined that both victims had numerous psychiatric diagno-
ses and symptoms that “significantly affect [their] percep-
tion, memory, cognition, and behavior related to the alleged
sexual assaults and other events in [their lives].” In addition,
he noted that their mother had been diagnosed with bipolar
disorder and schizo­affective disorder, both of which have
strong genetic elements and increased the likelihood that E.A.
and T.H. also have those disorders, and “there is an increased
likelihood that the impact that those disorders have on percep-
tion, memory, cognition, and behavior are also affecting E.A.
and T.H.”
Davis also testified at the hearing on the State’s motion in
limine. He explained that he had been retained to
provide some general information about children and
memory and the effect that various factors, such as sug-
gestibility types of questioning, those types of things can
have on children, as well as the impact that mental ill-
ness and [the victims’] specific conditions can have on
memory and overall personal and cognitive functioning.
Davis acknowledged that he had not evaluated E.A. or T.H.
and that while he found the sheer number of their diagnoses
indicated severe mental illness, he could not determine whether
the individual diagnoses were accurate. He noted that “[t]he
providers have had apparently some difficulty in sorting out
exactly what the definitive diagnosis is when you’re given this
many diagnoses.” He also stated:
That’s one of the difficulties in this case is looking at
all of these different diagnoses that have been given and
the various symptoms that these young ladies have had
is trying to put together a definitive diagnosis so you
know exactly what to treat with exactly what medication
or therapy.
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Cite as 31 Neb. App. 379Davis reviewed the diagnostic criteria for every disorder
listed and explained how each one could potentially affect the
victims’ perception, memory, and cognition. He also testified
that with the exception of bipolar disorder, all of the victims’
diagnoses could have been caused by childhood abuse or
trauma. He also testified that bipolar disorder is not typically
diagnosed in children and can be confused with several other
disorders, and individuals under age 18 cannot be validly diag-
nosed with personality disorders.
At one point, the court asked Davis whether any of the
victims’ diagnoses were specific to their credibility in terms
of truthfulness. Davis responded that a person with borderline
personality disorder, oppositional defiant disorder, or conduct
disorder is “probably less likely to give truthful testimony or
make truthful statements than someone who does not have
those kinds of conditions.”
The district court expressed concern about the danger of a
juror hearing that a person with one of these diagnoses could
be untruthful and jumping to the conclusion that this person
is untruthful. The court also questioned the value of sharing a
diagnosis with the jury and wondered why the jury could not
make a credibility determination on all of the other factors
without necessarily knowing that the victim might have a men-
tal diagnosis. The court also confirmed that Davis would need
a “valid diagnosis” before he could testify about its effects on
the victims’ cognitive function, which he did not have at that
time. Davis agreed with the court, stating “And I think you’re
100 percent correct that with all of these diagnoses, people are
seeing certain aspects of something and maybe one or two of
those are valid, but we just don’t know at this point.” The court
acknowledged that some of the diagnoses could be relevant,
but stated, it did not have “enough of a factual, underlying
foundational basis” to admit them.
[11] For admissibility of an expert’s testimony pursuant to
rule 702, a trial court must first determine whether the wit-
ness is qualified to provide an expert opinion. In this case, the
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Cite as 31 Neb. App. 379State was not challenging Davis’ qualifications as an expert
or his methodology. Rather, it was challenging the relevance
of his testimony and arguing that it would invade the prov-
ince of the jury. Accordingly, the trial court was asked only
to determine whether Davis’ opinion would assist the trier
of fact. See State v. Case, 4 Neb. App. 885, 553 N.W.2d 173(1996). This determination initially requires a determination
of relevance. Id.[12-14] Most trial court rulings excluding expert testimony
can be explained as findings by the court that the issue is inap-
propriate for expert resolution, either because the expert is not
needed for the jury to resolve the issue or because the expert
is incapable of rendering meaningful assistance. Id. The trial
court’s determination of whether an expert’s testimony will
be helpful to the jury or assist the trier of fact in accordance
with rule 702 is a determination involving the discretion of
the trial court, whose ruling on the admissibility of an expert’s
testimony or opinion will be upheld on appeal unless the trial
court abused its discretion. State v. Case, supra. It has been
further held that when an expert’s opinion on a disputed issue
is merely a conclusion which may be deduced equally well
by the trier of fact with sufficient evidence on the issue, the
expert’s opinion is superfluous and does not assist the trier of
fact in determining the factual issue or understanding the evi-
dence. See id.The trial court found that Davis’ opinion would not assist
the trier of fact and that its probative value was substantially
outweighed by the danger of unfair prejudice. Berger sought
to have Davis testify that the victims’ mental diagnoses
affected their behavior, their memory, and their ability to tell
the truth or, in other words, their credibility. The trial court
was rightfully concerned about the validity of the victims’
diagnoses and the danger that a jury would jump to a conclu-
sion about the victims’ mentality and credibility. The court
recognized that some of the diagnoses could be relevant, but
concluded it did not have sufficient foundational basis to
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Cite as 31 Neb. App. 379admit the evidence. Berger was able to test the victims’ cred-
ibility in other ways without creating the risk that the jury
would rely too heavily on the victims’ diagnoses and jump
to conclusions.
[15] It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to
give his or her opinion about an issue in question. In re Interest
of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011). We conclude
that the trial court did not abuse its discretion in excluding
Davis’ testimony.
Refusal to Allow Rebuttal
Testimony by Davis.
Berger assigns that the trial court erred in not allowing
Davis to provide rebuttal testimony. He argues that “[a]s the
State presented its case and arguably opened the door to Dr.
Davis’ testimony, . . . the defense should have been allowed
to offer Dr. Davis’ testimony to explain the inconsistencies,
memory lapses, and . . . lying behaviors” of the victims. Brief
for appellant at 40. Berger does not explain what testimony
the State elicited that allegedly “opened the door.” Given the
absence of a specific argument on this issue, we do not address
it further.
Berger also argues that the court’s reasoning for exclud-
ing Davis’ testimony following the State’s case was flawed
and not supported by the evidence. Berger asked the court to
reconsider the admissibility of E.A.’s mental health diagnoses
and made an offer of proof by calling Armstrong to testify.
Armstrong testified that when she began treating E.A. in 2011,
E.A. had been diagnosed with PTSD, reactive attachment dis-
order, attention deficit hyperactivity disorder, and adjustment
disorder. She testified that E.A.’s diagnoses fit her presentation
at the time she started treating her and continued to fit through-
out treatment.
Armstrong testified that reactive attachment disorder can
affect the ability to be truthful. She stated that none of E.A.’s
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Cite as 31 Neb. App. 379diagnoses cause psychotic symptoms, but reactive attachment
disorder can cause a person to look psychotic. She explained
that young children are typically not diagnosed with psycho-
sis. Armstrong testified that PTSD and reactive attachment
disorder can cause delusional thinking but that it is diffi-
cult to talk about children and delusions because children in
general can be delusional. She also testified that PTSD can
cause flashbacks of past trauma, rather than hallucinations.
Armstrong further stated that therapists only consider psycho-
logical evaluations/diagnoses from the past 3 years and that
E.A.’s diagnoses were “pretty old.”
Berger also offered a transcript of the February 2021 motion
in limine hearing where Davis testified, and Berger stated that
if Davis was called to testify, his testimony would be substan-
tially similar to his previous testimony. The court stated that
it was not changing its ruling in regard to allowing Davis to
testify. Specifically, the court stated:
And the motion — the same ruling stands. Again, two
things arose which I thought were interesting. One, partic-
ularly that last thing, [Armstrong] says that generally you
only rely upon those diagnoses for a period of three years
and they were quite a long time ago; and, number two,
that we were still couching things in possibly and specu-
lative and, therefore, I think it’s not relevant and would be
403. . . . But you got your record, so — all right.
Berger takes issue with the court’s reliance on Armstrong’s
statement that therapists generally only rely on psychological
diagnoses for a period of 3 years and E.A.’s diagnoses were
“quite a long time ago.”
Berger contends there was evidence that E.A. was diagnosed
with reactive attachment disorder and PTSD within 3 years
prior to her sexual assault accusations and that T.H. was diag-
nosed with PTSD within 3 years. Regardless of how recent
the victims’ diagnoses of reactive attachment disorder and/or
PTSD were, these were not diagnoses that Davis testified could
affect credibility. If allowed to testify at trial, his testimony
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Cite as 31 Neb. App. 379would have been that borderline personality disorder, oppo-
sitional defiant disorder, and conduct disorder can cause a
person to be less likely give truthful testimony. Accordingly,
Armstrong’s offer of proof did not support allowing Davis to
testify in regard to the victims’ credibility.
The court also noted that the diagnoses were still uncertain
and speculative. The court had the same concerns about Davis’
testimony that it did when it granted the motion in limine. It
was still concerned that Davis’ testimony would not assist the
jury and would be more prejudicial than probative. Berger’s
final assignment of error fails.
CONCLUSION
Having found that each of Berger’s assignments of error fail,
we affirm his convictions and sentences.
Affirmed.