NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Lancaster County: Karen B. Flowers, Judge.
Peter K. Blakeslee for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Mark S. Filholm appeals from his conviction in the district court for Lancaster County for first degree sexual assault. He argues that there was insufficient evidence to support the conviction and that he received ineffective assistance of counsel in seven respects. Because we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we find the evidence was sufficient to support the conviction. In addition, we conclude that the record is insufficient to address one of Filholm's ineffective assistance of counsel claims but reject his remaining claims because Filholm failed to show how he was prejudiced by his trial counsel's alleged deficient performance. Accordingly, we affirm.
The victim in this case, A.B.; her husband, Robert B.; and their two daughters have known Filholm for approximately 10 years. A.B. and Robert own a restaurant in Lincoln, Nebraska, where Filholm worked for several years. In addition, for the past few years, Filholm has done some painting, yardwork, and other small construction projects around A.B. and Robert's house, which is located near 17th and G Streets in Lincoln.
Sometime in 2010, Filholm began living in his truck, which he parked in the driveway of a rental house owned by A.B. and Robert in the area of 14th and G Streets in Lincoln. Because of this arrangement, Robert allowed Filholm to do his laundry and take a shower at A.B. and Robert's house at 17th and G Streets, even if the family was not home. Filholm did not have a key to the house, but most of the time at least one of the four entrances to the home was unlocked. Filholm testified at trial that he was usually at A.B. and Robert's house five or six times a week and would drink coffee there almost every morning. He admitted that he is familiar with the interior and exterior layout of the house.
On the evening of June 24, 2011, A.B. went to church and returned home around 9:30 or 10 p.m. Robert and the couple's two daughters were working at the family restaurant that night. Around midnight, A.B. went to bed in a guest bedroom on the first floor of the home. She was later awakened by a man touching her face and kissing her. The man had his face covered, but A.B. could feel that he had a beard and noticed that he smelled like cigarettes. The man digitally penetrated A.B., performed oral sex on her, and then had sexual intercourse with her. A.B. testified at trial that she told the man "no" and "please stop, " but that he did not stop.
When the man spoke during the assault, A.B. recognized his voice. When asked at trial whose voice she heard, A.B. responded, "I'm pretty sure it's Mark [Filholm]." After the assault was over, the assailant pushed A.B. into a bathroom that is adjacent to the guest bedroom and told her to take a shower to "wash off the evidence." A.B. again recognized the man's voice, and when asked at trial whose voice it was, she testified, "Mark [Filholm's] voice." The assailant turned the shower water on and washed out A.B.'s mouth and vaginal area with the water. At some point during the shower, A.B. realized the assailant had left.
A few minutes later, A.B. heard her family return home. She got out of the shower and encountered her older daughter first. She told her what happened and asked her to call the 911 emergency dispatch service. The older daughter immediately placed the call. Police received the call reporting the assault at 1:33 a.m. on June 25, 2011. On direct examination, A.B. stated that she did not know how long the assault lasted. On cross-examination, she was asked if she could estimate how much time passed from the time she was awakened by someone touching her face until her family came home, and she stated, "Could be half an hour."
The police arrived at A.B. and Robert's house shortly after the 911 call was made. The responding officer testified at trial that A.B. provided the name of her attacker without any hesitation in her demeanor. The officer transported A.B. to the hospital, where she underwent a sexual assault examination. The examination revealed that A.B. had sustained injuries, including abrasions to her labia minora and lacerations to her hymen. Blood was found on the sheets of the bed where the assault occurred.
Based on the information provided by A.B. and her family, police went to A.B. and Robert's rental home looking for Filholm. Officers found him sleeping in his truck and noticed that the right side of his body from just above his knee to the middle of his rib cage was "pretty significantly wet." One officer testified that the wetness did not appear consistent with Filholm's urinating himself because there was no moisture in the groin area of Filholm's pants. The officer also did not detect an odor of urine.
The officer testified that it appeared that Filholm had consumed alcohol, because the officer could "faintly smell a little bit of alcohol, " but the smell was not overpowering. However, the officer noticed that Filholm "had a very strong odor" of cigarettes, "like he'd been smoking cigarettes." Police collected several pieces of evidence from Filholm, including a swab of a red stain on his left index fingernail and fingernail scrapings. Although the red stain tested presumptively negative for the presence of blood, A.B.'s DNA was found in both of the samples taken from Filholm's hands.
Filholm testified in his own behalf at trial. He denied going to A.B. and Robert's house on the night of June 24, 2011, or the early morning of June 25 and denied sexually assaulting her. He testified that he spent the evening of June 24 drinking at several bars in the area of 14th and O Streets. After leaving the last bar, he stopped in to A.B. and Robert's restaurant, also located near 14th and O Streets, around 12:30 a.m. He only stayed for a few minutes, spoke to Robert's younger daughter, discovered that the older daughter and Robert were there as well, and then left. He testified that he walked south straight down 14th Street to the rental house at 14th and G Streets and estimated that he got back to his truck around 12:45 a.m.
Surveillance video from a camera on a building located on 14th Street, between M and L Streets, captured someone walking in that area matching Filholm's description at 12:43 a.m. According to police, the walk from the restaurant, near 14th and O Streets, to Robert and A.B.'s house, near 17th and G Streets, takes just under 16 minutes.
The jury ultimately found Filholm guilty of the first degree sexual assault of A.B. At sentencing, Filholm was found to be a habitual criminal and was sentenced to 20 to ...