- Associated Press - Friday, October 17, 2014

OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday upheld the child sexual assault conviction of an Omaha man who had objected to a court reporter’s covert efforts to correct a faulty trial transcript.

Charles Kays, 73, was convicted and sentenced in 2011 to up to 20 years in prison for sexually abusing a girl starting when she was 4.

On appeal, Kays’ attorney noted several mistakes with the official court transcript - including that it said 13 jurors instead of 12 deliberated in the case. The court reporter corrected the mistakes, printed out a new version backdated to the date the original transcript was filed and then shredded the original transcript. She did so without the approval of a judge, which is required by law.

The court reporter admitted to making mistakes in amending the trial transcript but testified she did so in an effort to provide an accurate record of the trial, not to hide her mistakes.

Kays objected to her actions, and the Nebraska Court of Appeals sent the matter of the amended transcript back to Douglas County District Court for a hearing. However, the trial judge in Kays’ case recused herself, saying she had a conflict of interest, so the hearing was held before another judge who was not familiar with Kays’ trial. That judge determined that the amended trial transcript was accurate, and Kays again appealed over the transcript.

The Nebraska Court of Appeals last year upheld Kays’ conviction, and Kay appealed to the Nebraska Supreme Court, arguing that the appeals court had erred by not finding that the judge’s recusal from the hearing was improper.

But on Friday, the high court said Kays had not argued that point to the Nebraska Court of Appeals, and had therefore waived the right to do so on appeal.

“We have repeatedly said that one may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error,” Justice Michael McCormack wrote for the high court.

Kays’ attorney, Frank E. Robak Sr., of Council Bluffs, Iowa, did not immediately return a message Friday seeking comment.


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