State v Kelly Placenta by benbenzhou

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									                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. KELLY


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                             V.
                                    AJ KELLY, APPELLANT.


                             Filed June 15, 2010.   No. A-09-1113.


       Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.
Affirmed.
       Thomas C. Riley, Douglas County Public Defender, and Cheryl M. Kessell for appellant.
       Jon Bruning, Attorney General, and Nathan A. Liss for appellee.


       IRWIN, SIEVERS, and CARLSON, Judges.
       IRWIN, Judge.
                                      I. INTRODUCTION
         Pursuant to this court’s authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008),
this case was ordered submitted without oral argument. AJ Kelly appeals his conviction and
sentence on a charge of first degree sexual assault of a child. On appeal, Kelly challenges the
district court’s overruling of his objection to the chain of custody concerning DNA evidence, the
sufficiency of the evidence to support his conviction, and the sentence imposed by the court. We
find no merit to any of these assertions on appeal, and we affirm.
                                      II. BACKGROUND
        On August 18, 2008, Kelly was charged by information with first degree sexual assault of
a child. The State alleged that Kelly, being a person 19 years of age or older, had subjected a
person of less than 12 years of age to sexual penetration. The State alleged that the incident
occurred on or about August 1, 2007.




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         The victim testified at trial that her date of birth was March 22, 1996. Kelly was the
victim’s mother’s boyfriend at the time of the incident. The victim testified that she had sexual
intercourse in August 2007 and that she became pregnant as a result. The victim was hesitant to
name Kelly as the person she had intercourse with, but she ultimately pointed to him to identify
him. Evidence adduced at trial indicated that the victim delivered a stillborn baby in April 2008.
         The labor and delivery nurse who assisted the victim with her delivery testified at trial.
She testified that hospital procedure required the placenta delivered with the baby to be placed in
a biohazard bag, placed in a “bucket,” labeled, and placed in a biohazard room until a courier
picked it up and delivered it to the pathology department. She identified a “pathology request”
form indicating that a request for pathology was prepared concerning the placenta delivered by
the victim. That request form includes a notation verifying that the nurse had bagged and labeled
the placenta and that she verified that the victim’s patient identification number was correctly
noted on all paperwork and labels.
         The State also adduced testimony from a hospital employee who worked in specimen
receiving in the pathology laboratory and who logged in specimens when received by that
department. She testified that she logged a specimen related to the victim. She identified records
memorializing that a placenta was received by the pathology laboratory and that the labels
affixed to the containers identified the placenta as having been delivered by the victim. She
testified that after logging the placenta, it was placed in a refrigerator in a secured area that
required a badge to gain access.
         The State also adduced testimony from another hospital employee who worked in the
pathology department and who transferred specimens from the secured refrigerator in specimen
receiving and took them to the “frozen section gross room” for pathology testing. She testified
that she retrieved the placenta delivered by the victim from the specimen receiving refrigerator
by using her badge to access the secured room. She then took the placenta to the frozen section
room, which is another secured area where samples are taken and frozen. She then made sure
that all the paperwork matched up to identify the placenta. She then logged all information into
the pathology department computers.
         The detective who was the primary investigator on this case testified that he obtained a
sample from Kelly for DNA testing. He also obtained a sample from the victim for DNA testing.
He testified that he also obtained paraffin blocks and slides containing tissue samples from the
hospital pathology department. He also testified about the paperwork used to memorialize all
samples and case numbers used to identify all samples. He delivered all of these items to a DNA
laboratory for DNA testing.
         The State also adduced testimony from an employee in the DNA laboratory. She testified
about the paperwork and procedures used to identify samples received in the laboratory. She
testified that paperwork indicated that samples were delivered by the investigating detective to
the DNA laboratory. She testified that the samples received by the laboratory included buccal
swabs from two different people and a number of slides containing tissue samples from the
hospital. She testified about the various security measures employed to ensure the integrity of the
samples while in the DNA laboratory. Finally, she testified that she performed the DNA testing
on the samples in this case and that the results of her testing indicated that Kelly could not be
excluded as the father based on the tissue samples. She testified that the genetic odds in favor of


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paternity were “38,492,240,” which meant that over 99.999 percent of people unrelated to Kelly
would be excluded.
        On August 25, 2009, the district court entered an order accepting a jury verdict of guilty.
On October 26, the court entered an order sentencing Kelly to 35 to 50 years’ imprisonment,
with a mandatory minimum sentence of 15 years’ imprisonment. This appeal followed.
                                III. ASSIGNMENTS OF ERROR
       On appeal, Kelly asserts that the court erred in overruling his challenges to the chain of
custody of the tissue samples from the placenta, in finding sufficient evidence to support a
conviction, and in imposing an excessive sentence.
                                          IV. ANALYSIS
                                      1. CHAIN OF CUSTODY
        Kelly first challenges the court’s overruling of Kelly’s challenges to the chain of custody
of the tissue samples from the placenta delivered by the victim and used for DNA testing in this
case. The court overruled a pretrial motion in limine and overruled objections made during the
course of the trial. We find no abuse of discretion, and we affirm the court’s overruling of
Kelly’s challenges to the chain of custody.
        Where objects pass through several hands before being produced in court, it is necessary
to establish a complete chain of evidence, tracing the possession of the object or article to the
final custodian; and if one link in the chain is missing, the object may not be introduced in
evidence. State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004). It is elementary that objects
which relate to or explain the issues or form a part of a transaction are admissible in evidence
only when duly identified and shown to be in substantially the same condition as at the time in
issue. Id. Appellate review concerning the admissibility of this evidence is for abuse of
discretion. Id. Whether there is sufficient foundation evidence for the admission of physical
evidence must necessarily be determined on a case-by-case basis. Id.
        It must be shown to the satisfaction of the trial court that no substantial change has taken
place in an exhibit so as to render it misleading. Id. Important in determining the chain of
custody are the nature of the evidence, the circumstances surrounding its preservation and
custody, and the likelihood of intermeddlers tampering with the object. Id.
        In this case, the State adduced evidence that the placenta, after it was delivered, was
bagged and labeled with an identification number that was unique to the victim in this case. It
was then placed in a biohazard room to await a courier to deliver it to pathology. The State
adduced evidence that the placenta was delivered to pathology, that it remained sealed in the bag,
and that it continued to bear the labels with the unique identification number. The State adduced
evidence that it was logged in, that it was kept in secured areas requiring a security card to
access, and that samples were eventually retrieved by a police officer. The State adduced
evidence concerning the police officer’s logging of the samples into evidence and delivery to the
DNA testing laboratory. The State adduced evidence concerning the procedures at the DNA
testing laboratory.
        The evidence indicates that the samples ultimately tested contained genetic markers
linking the placenta to both the victim in this case and to Kelly. The nature of the evidence in this


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case was tissue samples purportedly taken from a placenta delivered by the victim, and which
ultimately proved to contain the victim’s DNA. There was evidence presented concerning the
circumstances surrounding its preservation and custody, and the evidence indicates that all
hospital, police, and DNA laboratory protocols were followed and documented. Finally, there
was no evidence to suggest any intermeddlers tampered with the object. We find no abuse of
discretion by the district court in overruling Kelly’s challenges to the chain of custody. This
assigned error is without merit.
                                   2. SUFFICIENCY OF EVIDENCE
        Kelly next asserts that the district court erred in finding sufficient evidence to sustain the
conviction for first degree sexual assault of a child. We find no merit to this assertion.
        When reviewing a criminal conviction for sufficiency of the evidence to sustain the
conviction, the relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Tucker, 278 Neb. 935, 774
N.W.2d 753 (2009). A person commits sexual assault of a child in the first degree when he
subjects another person under 12 years of age to sexual penetration and the actor is at least 19
years of age or older. Neb. Rev. Stat. § 28-319.01 (Reissue 2008).
        The State adduced evidence in this case that the victim was subjected to sexual
penetration when she was 11 years old. She became pregnant and delivered a stillborn baby. The
victim identified Kelly at trial as the man who had subjected her to sexual penetration. The State
also adduced DNA evidence linking Kelly to the crime. There was sufficient evidence to support
the jury’s conclusion that Kelly committed first degree sexual assault of a child. Kelly’s
assignment of error is without merit.
                                      3. EXCESSIVE SENTENCE
        Finally, Kelly asserts that the sentence imposed was excessive. We find no abuse of
discretion by the court in the sentence imposed.
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
First degree sexual assault of a child is a Class IB felony offense, with a mandatory minimum
sentence of 15 years’ imprisonment. § 28-319.01. Class IB felony offenses are punishable by 20
years’ to life imprisonment. Neb. Rev. Stat. § 28-105 (Reissue 2008).
        The sentence imposed in this case was within the statutory limits. Considering the nature
of the offense and the other relevant factors, we find no abuse of discretion. This assigned error
is meritless.




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                                       V. CONCLUSION
        We find no merit to Kelly’s assertions on appeal. The district court did not abuse its
discretion in overruling Kelly’s objections to the chain of custody, there was sufficient evidence
to sustain the conviction, and the sentence imposed was not excessive. We affirm.
                                                                                        AFFIRMED.




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