Tuesday, August 11, 2009
Nebraska Supreme Court affirms misdemeanor assault conviction and 100 day sentence when victim did not testify except through the county court's receiving into evidence her 911 recorded call. State v. Thompson, S-08-1134, 278 Neb. 320 District Court on appeal ruled tape was inadmissible hearsay but admitting the tape was harmless error. Defendant did not raise a confrontation objections. an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without a jury. State v. Harms, 264 Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The appellant must show that the trial court made a finding of guilt based exclusively on the erroneously admitted evidence. State v. Lara, 258 996, 607 W.2d 487 (2000). If there is other sufficient evidence to support the finding of guilt, the conviction will not be reversed. Id. The burden rests on the appellant in a bench trial because of the presumption that the trial court, sitting as the fact finder, disregards inadmissible evidence. State v. Harms, supra. We conclude there was other sufficient evidence to support the finding of guilt.