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State v. Van11/12/2004
1)(b) would require a further inquiry into Van's intent. Regardless of J.G.C.'s belief, the issue of Van's knowledge and intent was for the jury to decide. Because J.G.C. testified that he told Van that he wished to go home, there was sufficient evidence upon which the jury could conclude that Van acted with the requisite knowledge and intent.
c. Sexual Assault
As noted, consent is clearly a defense to the sexual assault charge. In this respect, Van argues that the only evidence in the record is that J.G.C. neither physically nor verbally resisted the assault and that thus, he consented to it. However, under Neb. Rev. Stat. § 28-318(8) (Reissue 1995), the phrase "without consent" within the context of § 28-321 can mean compulsion to submit "due to the use of force or threat of force." In addition, " victim need not resist verbally or physically where it would be useless or futile to do so." § 28-318(8). The jury was instructed on these definitions. Thus, the mere fact that J.G.C. did not verbally or physically resist is not determinative of whether he consented to the acts. The record includes evidence that J.G.C. was subject to beatings for disobeying Van and that he revoked his consent to the BDSM relationship prior to the acts of sexual penetration. Thus, the evidence was sufficient to support Van's conviction on this charge.
d. First and Second Degree Assault
Although Van makes a general assignment that the jury's verdict was not supported by sufficient evidence, he makes no specific argument in this regard with respect to the assault convictions. Errors that are assigned but not argued will not be addressed by an appellate court. State v. Perry, ante p. 179, 681 N.W.2d 729 (2004); State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
(ii) Alleged Prosecutorial Misconduct
[22-24] The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963); State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999). Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. Whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995). Van argues that the State failed to disclose three categories of evidence prior to his trial.
a. Polygraph Examination Notes
Van filed a pretrial motion to disclose the results of a polygraph test administered to J.G.C. This motion was sustained on June 21, 2002. Van concedes in this brief that he received polygraph information from the State prior to trial. Van contends, however, that the information provided to him was incomplete. Specifically, he contends that one section of this information, captioned "PRE-TEST ADMISSIONS," states "See notes" and that he was never provided with any notes. Brief for appellant at 34. He argues that the failure of the State to provide the notes unfairly limited his ability to cross-examine J.G.C. concerning prior inconsistent statements.
At the heari
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