S-21-0413 State of Nebraska (Appellee) v. Douglas Anders (Appellant)
Appeal from the District Court for Douglas County, Judge Timothy P. Burns
Attorneys: Douglas Anders (Self-Represented Litigant) and Timothy S. Noerrlinger (Appellant) and Kimberly A. Klein (Attorney General’s Office for Appellee).
Criminal: First Degree Sexual Assault, Ineffective Assistance of Counsel, and Excessive Sentence.
Proceedings below: After being found guilty of First Degree Sexual Assault, the district court sentenced Appellant to twenty-five (25) years to thirty (30) years in prison.
Issues: Appellant makes the following assignments of error: 1) The trial court erred as a matter of law in finding Doug Anders committed sexual penetration of the Kathleen Giebler by deception; 2) The trial court erred as a matter of law in finding Doug Anders committed sexual penetration of Kathleen Giebler by reason of {psychological} coercion; 3) Appellant’s trial counsel was ineffective in: A) Failing to object to nonexpert testimony as to psychological coercion; B) Failing to argue reliance upon deception as to the nature or purpose of a sexual act must be objectively reasonable; C) Failing to object to inadmissible single, double, and triple hearsay; D) Failing to object to unreliable testimony by Morgan Cronk as to an allegedly prior bad that was dissimilar, did not constitute a crime of sexual assault under Sec.274l3 Neb. Rev. Stat., and was unduly prejudicial under Sec.27- 403 Neb. Rev. Stat.; E) Failure to impeach witness Steven Scott about his previous felony convictions, to object to his testimony as improper evidence of prior bad acts, to object to defense witnesses being questioned about Scott's testimony, and the financial windfall Scott would derive from Doug Anders being convicted; F) Failing to object to inadmissible text messages from Doug Anders' and Kathleen Giebler’s cell phones. 3. 9 4. 5.; G) Failure to cross examine Kathleen Giebler about the inconsistent time periods of Doug Anders' alleged misconduct between her final testimony and previous sworn statements; H) Failure to seek the counseling records of Kathleen Giebler's counselor William Rucker under State v. Trammell. 231 Neb. 137 (1989), to cross-examine Rucker thereon and to retain a defense expert to determine and testify if Kathleen Giebler was suffering from false memory syndrome, and whether or not Kathleen Giebler's reliance upon any deception by Doug Anders was reasonable and/or a result of psychological coercion; 4) Trial counsel's individual instances of ineffectiveness in failing to object to prejudicial inadmissible evidence each constitute plain error; 5) Trial counsel's collective ineffectiveness in failing to object to prejudicial inadmissible evidence constitutes plain error under the cumulative error doctrine; 6) The trial court committed plain error in finding Doug Anders guilty where the only admissible evidence favorable to the State was the uncorroborated and materially inconsistent testimony of Kathleen Giebler; 7) The trial court's sentence of Doug Anders, while within the statutory limits, under the facts was clearly excessive, disproportionate under the facts, an abuse of discretion under Nebraska case law, and unconstitutional under Section I-9 of the Nebraska Constitution and Amendment 8 of the US Constitution.