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State v. Van11/12/2004
shield law. However, relying upon State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999), and State v. Johnson, 9 Neb. App. 140, 609 N.W.2d 48 (2000), the court concluded that under the Confrontation Clause of the Fifth Amendment, Van had the right to inquire generally at trial whether J.G.C. had previously engaged in BDSM activities with persons other than Van.
Van contends that the limitations which the district court imposed upon his right to cross-examine J.G.C. cause the rape shield law to be unconstitutional as applied to him, arguing that if he "had been allowed to fully cross examine [J.G.C.], a reasonable jury would have a 'significantly different impression of [J.G.C.'s] credibility.'" Brief for appellant at 27, quoting State v. Johnson, supra. He contends that "the rejected evidence of [J.G.C.'s] prior consensual BDSM behavior was so relevant and probative that it triggered Van's constitutional right to present such evidence." Brief for appellant at 27.
However, the substance of this "rejected evidence" is not apparent from the record. At trial, Van cross-examined J.G.C. extensively about his prior BDSM activities, including specific information about his relationship with F.B. He made no offer of proof with respect to any additional facts he sought to elicit from J.G.C. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked. Neb. Evid. R. 103(1), Neb. Rev. Stat. ยง 27-103(1) (Reissue 1995); State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). Van has not preserved an issue with respect to exclusion of specific evidence pertaining to J.G.C.'s prior sexual history, and thus we do not reach his claim that the rape shield law is unconstitutional as applied to him.
2. Sufficiency of Information
(a) Assignment of Error
In his third assignment of error, Van assigns, restated, that the district court erred in finding no error of law or irregularities at trial with regard to the State's use of a "blanket" information which did not specify particular facts as applied to each charged offense.
(b) Standard of Review
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).
(c) Disposition
The information filed in this case alleged that Van committed the charged offenses in Wayne County "on or about December 8, 2001 to December 17, 2001." Each charged offense was described in the information using the language of the statute by which it was defined. At trial, Van did not specifically object to the form of the information, but did object to all the evidence being presented without specifying which evidence related to which count. During the hearing on his motion for new trial, Van argued, inter alia, that the information violated his double jeopardy rights. Generally, on appeal, he now argues that the information was deficient because it failed to specify the particular facts that supported each of the two assault charges. Relying upon State v. Bachelor, 6 Neb. App. 426, 575 N.W.2d 625 (1998), Van contends that there is no way of knowing what evidence the jury used to support its guilty verdict with respect to the charges of first and second degree assault.
Bachelor did not involve a challenge to the sufficiency of an information, but, rather, a
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