State v. Smith

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State v. Smith

Case Number
Call Date
October 1, 2015
Court Number
Case Summary

S-14-0769 State v. Kelvin Smith (Appellant)

Sarpy County, Judge David Arterburn

Attorneys: Kimberly A. Klein (Attorney General's Office) --- Thomas P. Strigenz (Public Defender) (Appellant)

Criminal: Two counts of first degree sexual assault of a child, a Class II felony; one count of third degree sexual assault of a child, a Class IIIA felony; two counts third degree sexual assault of a child, second offense, each a Class IC felony; three counts of incest, each a Class III felony, three counts of visual depiction of sexually explicit conduct, each a Class III felony, and one count of Child abuse, a Class IIIA felony.

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to a total of 41 to 110 years in prison, with a mandatory 35 year minimum sentence. Appellee State of Nebraska filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in (1) finding certain testimony was prior consistent statements; (2) allowing the State to endorse Dr. Suzanne Haney; (3) not finding plain error when untimely exculpatory evidence was provided to Appellant during the trial in violation of Brady v. Maryland and Nebraska discovery rules; (4) allowing Dr. Haney to testify without conducting a Daubert hearing; (5) accepting exhibits 4, 6, and 9 into evidence; (6) allowing Det. Spizzirri to give opinion evidence about Exhibit 7; (7) allowing Det. Spizzirri to testify about specific instances of conduct in order to bolster the credibility of a witness; (8) finding sufficient evidence to support the verdicts; (9) finding that a prior conviction was properly authenticated and certified for purposes of enhancement; (10) finding that mandatory minimum sentences for counts 5, 7, and 8 had to be served consecutive to all other counts; (11) violating the cumulative error doctrine; (12) imposing excessive sentences.