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State v. Van11/12/2004
as unaware of Van's case until after the verdict and that when he became aware of it, he contacted Van's attorney. In his affidavit, W.B. opined that J.G.C. was dishonest and motivated by his own financial interests.
When announcing its decision on the motion for new trial on the record, the district court found that the issues addressed in W.B.'s affidavit pertaining to lies by J.G.C. had been raised at trial and admitted by J.G.C. It reasoned that the defense had the opportunity to and did strongly rely on J.G.C.'s lies as a defense at trial and that the additional information provided by W.B. would have gone solely to J.G.C.'s credibility and did not therefore constitute a permissible basis for granting a new trial. See State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). The court did not make an express finding whether the "newly discovered" evidence was such that it could not have been discovered prior to trial.
We assume without deciding that Van has demonstrated that the evidence claimed as "newly discovered" was not available at trial and could not have been discovered with reasonable diligence. See State v. Jackson, supra. However, he was also required to demonstrate that the evidence materially affected his substantial rights. See id. Nothing in W.B.'s affidavit would directly affect any of J.G.C.'s testimony about what occurred between Van and him. W.B.'s testimony that J.G.C. had previously sought a no-limits BDSM relationship and that J.G.C. was capable of deception was information that had already been presented to the jury and thus was entirely cumulative. At most, the evidence provided by W.B.'s affidavit would collaterally affect J.G.C.'s general credibility and thus was not material to Van's defense. The district court did not abuse its discretion in finding that newly discovered evidence did not support a new trial.
III. CONCLUSION
For the reasons discussed, we find no merit in any of the assignments of error and, therefore, affirm the judgment of the district court.
Affirmed.
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