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In re Kyle O.9/27/2005
his age in some ways. Kyle has expressed disgust and repulsion while discussing sexual material in my office. Which indicates to me that he is . . . still in a pre- or early adolescent . During this stage adolescents express little interest in sexual matters. This stage is where children express an interest in becoming more independent from their parents. Kyle chooses to express his independence with minimal rebellion in his home. Kyle expresses a great deal of maturity and independence in fixing things for his mom and working with his grandfather. In my office Kyle prefers to play and show me how he can build things, mostly things with wheels, using connecting blocks. Kyle shows a great deal of interest in anything with an engine or on wheels.
In response to the offer of the exhibit, the State's attorney expressly disclaimed any objection on the basis of foundation or hearsay, but did object on the basis of relevance. The trial court deferred ruling on the objection until after the trial. In a written judgment entered November 30, 2004, the trial court excluded the exhibit and found beyond a reasonable doubt that Kyle had subjected S.S. to sexual contact in violation of § 28-320. Accordingly, Kyle was adjudicated pursuant to § 43-247(1). Kyle timely appeals.
ASSIGNMENTS OF ERROR
Kyle asserts, consolidated and restated, that (1) the trial court erred in excluding the exhibit that Kyle offered and (2) there was insufficient evidence to support the adjudication under § 43-247(1) or to establish that Kyle subjected S.S. to sexual contact in violation of § 28-320.
STANDARDS OF REVIEW
Cases arising under the Nebraska Juvenile Code are reviewed de novo on the record, and an appellate court is required to reach conclusions independent of the trial court's findings. In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under Neb. Rev. Stat. § 27-401 (Reissue 1995), the trial court's decision will not be reversed absent an abuse of discretion. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).
ANALYSIS
Exclusion of Exhibit
Kyle argues that the trial court erred in excluding the letter from Kyle's counselor. He relies upon the part of the letter which opines that Kyle is emotionally immature for his age. Kyle suggests that this opinion may indicate that adult assumptions about Kyle may be false. We assume that this portion of the exhibit was relevant and would have been admissible.
[3-5] However, the content of the exhibit was not restricted to such arguably relevant material. The letter also contained expressions concerning Kyle's statements to his counselor about the allegations and an opinion that Kyle was telling the truth. Credibility of a witness is always relevant. State v. Eldred, 5 Neb. App. 424, 559 N.W.2d 519 (1997). However, Kyle did not testify at the trial. Even if Kyle had testified at the trial, another principle would have precluded admission of the counselor's opinion that Kyle was telling the truth. Normally, it is improper for one witness to testify as to the credibility of another witness. See State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989). We believe the rule has equal application in the situation here, where Kyle did not testify. In the instant case, the counselor's expressions describing Kyle's statements and opining that Kyle was telling the truth were irrelevant. That portion of the exhibit was not admissible. If an exhibit is admissible only in part, it is incumbent on the offeror to select and offer only the admissible part; if
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