August 27, 2013
State of Nebraska, appellee,
Mark S. Filholm, appellant.
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 30 years' imprisonment. Filholm timely appeals.
III. ASSIGNMENTS OF ERROR
Filholm assigns that there was insufficient evidence to support his conviction and that his trial counsel was ineffective in seven respects.
1. Sufficiency of Evidence
Filholm argues that there was insufficient evidence to support his conviction. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011). The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
Filholm was charged with first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2008). According to this statute, a person commits first degree sexual assault if he or she subjects another person to sexual penetration without the consent of the victim. Accordingly, the State was required to prove that Filholm subjected A.B. to sexual penetration without her consent.
The elements of penetration and consent appear to be undisputed. A.B. testified at trial that a man entered the house and had sexual intercourse with her, among other acts, despite her repeatedly asking him to stop. The issue in this case is the identity of that man. Thus, our inquiry will be limited to whether the State adduced sufficient evidence so that a rational juror could have found that Filholm was the man who sexually assaulted A.B.
A.B. testified that she recognized the man's voice when he spoke to her and that it was Filholm's voice. Filholm admitted that A.B. would be familiar with his voice because he has known her for nearly 10 years. A.B. testified that the man smelled like cigarettes and had facial hair. The police officer who questioned Filholm on the night of the assault noticed that Filholm smelled strongly of cigarettes, and a photograph of Filholm taken that night shows that he had facial hair at that time.
Although there was conflicting testimony as to what time Filholm was at the restaurant that night, Filholm testified that he believed he was there around 12:30 a.m. and left after a few minutes. This testimony would be supported by the surveillance video showing someone matching Filholm's description walking a few blocks from the restaurant at 12:43 a.m. Based on this evidence plus the testimony that it takes just under 16 minutes to walk from the restaurant to A.B. and Robert's house, the jury could have found that there was sufficient time for Filholm to have walked to A.B. and Robert's house and assaulted her before her family returned home and called 911 at 1:33 a.m.
In addition, there was other circumstantial evidence presented at trial which the jury could have found credible that would support the jury's verdict. The jury could have found that the wetness on Filholm's shirt came from forcing A.B. to take a shower, rather than from urinating himself. The jury could have found that A.B.'s DNA was transferred to Filholm's fingers as a result of the digital penetration that occurred during the assault. The jury could have found that Filholm's DNA was not found on A.B. because the shower washed away any evidence left behind. The jury could have found that Filholm was the man who assaulted A.B. because he knew that her husband and daughters were at the restaurant, leaving A.B. home alone, and because Filholm admitted that he was familiar with the layout of A.B. and Robert's house, including the bathroom adjacent to the bedroom where the assault occurred.
Filholm makes several arguments as to why he believes the evidence was insufficient to support his conviction, but what he is asking us to do through his arguments is to reweigh the evidence presented to the jury. This we cannot do. See State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). Viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient for the jury to find Filholm guilty of first degree sexual assault.
2. Ineffective Assistance of Counsel
Filholm claims that he received ineffective assistance of counsel in seven respects. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order. Id.
A trial counsel's performance was deficient if it did not equal that of a lawyer with ordinary training and skill in criminal law. Id. In addressing the "prejudice" component of the test, an appellate court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Id. To show prejudice, the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). The determining factor is whether the record is sufficient to adequately review the question. Id. We now turn to Filholm's specific claims.
(a) Refresh Recollection
Filholm alleges that trial counsel was ineffective because counsel failed to object to the improper method by which the State refreshed the recollection of A.B. and Robert's older daughter. At trial, the older daughter testified that Filholm came into the restaurant that night "[a]round 1:10." She was asked whether she was guessing or whether she knew the time, and she replied that she was guessing. The State then attempted to refresh her recollection of what time she had seen Filholm by showing her the statement she made to police. Twice the State asked whether reviewing her statement would refresh her recollection "as to what [she] told the officer." Finally, after the witness reviewed the statement, the State asked her whether her recollection had been refreshed as to what time Filholm came by the restaurant. She answered in the affirmative and then testified that he had come in at 1 a.m.
Filholm argues that he was prejudiced by the improper method of refreshing the witness' recollection because it allowed the State to expand the timeframe of opportunity for the crime from 1:10 a.m. to 1 a.m. He claims that the proper question was whether reviewing the statement would refresh the witness' recollection as to what time she had seen Filholm. We initially note that this "proper" question was posed to the witness eventually, causing her to answer affirmatively and state that she had seen Filholm at 1 a.m. Regardless, we disagree that the above-described exchange prejudiced Filholm. As we previously acknowledged, there was conflicting testimony as to what time Filholm was at the restaurant, but Filholm's own testimony placed him there around 12:30 a.m. Thus, the testimony placing him at the restaurant at 1 a.m. was no more prejudicial to him than his own testimony. This assertion is without merit.
(b) Use of Term "Victim"
Filholm alleges that trial counsel was ineffective because counsel failed to move for a mistrial based on the prosecutor's failure to obey the trial court's order in limine. Prior to trial, the court granted Filholm's motion in limine prohibiting use of the term "victim" at trial to describe A.B. Two police officers who testified referred to A.B. as "the victim, " with one witness using the term twice during his testimony. After the second use, the prosecutor indicated that she had forgotten to instruct that witness not to use that term. Defense counsel objected each of the three times the term was used, and the objections were sustained. Defense counsel did not move for a mistrial.
Filholm now claims that trial counsel's failure to move for a mistrial was prejudicial because it waived his right on appeal to claim reversible error based on prosecutorial misconduct. He asserts that "the fact that the prosecutor failed to inform the witnesses of the trial court's order, and the resultant repeated prejudicial references to A.B. as the 'victim' was sufficiently egregious that the trial court would have granted a mistrial." Brief for appellant at 23.
The Nebraska Supreme Court has repeatedly held that counsel cannot be ineffective for failing to make a motion, objection, or argument that has no merit. See, State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010); State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007); State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). We must therefore determine whether a motion for mistrial based on prosecutorial misconduct would have been granted. If not, there can be no ineffective assistance of counsel for failure to make such a motion.
A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). Events that may require the granting of a mistrial include egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of incompetent matters. Id. And before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred. Id.
We have previously held that use of the word "victim" was not prejudicial because any damaging effect from its use was removed by instruction to the jury. See State v. Malcolm, 7 Neb.App. 286, 583 N.W.2d 45 (1998). In Malcolm, the jury instructions defined the term "victim" as a person alleging to have been sexually assaulted and reminded the jury that the State had the burden of proving every element of the crime beyond a reasonable doubt.
In this case, although the trial court prohibited use of the term "victim, " we conclude that Filholm has failed to show that its use caused a substantial miscarriage of justice and denied him a fair trial. The term was used on only three occasions during a trial that lasted 4 days and during which 14 witnesses testified. The instructions given to the jury in this case were identical to those given in Malcolm. Additionally, unlike many sexual assault cases, the fact that A.B. was subjected to sexual penetration without her consent, or in other words, whether A.B. was a "victim, " was not in dispute in this case. Filholm's defense was not that A.B. was not a victim, but, rather, that he was not responsible for victimizing her.
As such, we cannot find that the prosecutor's failure to advise a single witness of the order in limine resulting in use of a prohibited term on three occasions rises to the level of prosecutorial misconduct. Without such misconduct, a mistrial would not have been granted, and therefore, there was no ineffective assistance of counsel on this basis.
(c) Use of Term "Rape"
Filholm alleges that trial counsel was ineffective with respect to the term "rape" in three ways. First, trial counsel failed to include the term "rape" in his motion in limine. Second, trial counsel failed to object on the grounds of hearsay when A.B. testified that she told her older daughter, "Mark [Filholm] just raped me." Finally, trial counsel failed to move to strike A.B.'s statement.
Filholm does not explain why the term "rape" should have been included in the motion in limine or how he was harmed by its exclusion. He makes a general assertion that he was prejudiced by these first three claims of ineffective assistance of counsel because "this was a weak case where sufficient explanations by the State of the evidence which pointed to [Filholm] not being the perpetrator was lacking." Brief for appellant at 27. In addition, Filholm generally asserts that the "lack of effectiveness of [Filholm's] trial counsel allowed the State to present evidence that was extremely prejudicial to [Filholm], and the admission of this improper evidence undermined confidence in the outcome of the trial." Brief for appellant at 28.
As is the standard when claiming a denial of effective assistance of counsel, Filholm must allege sufficient facts which, if proved, would establish a reasonable probability that the outcome of his case would have been different. He has not done so. Filholm's allegations in connection with this claim are conclusory, and he has not shown how, had counsel included the term "rape" in the motion in limine, Filholm would not have been convicted. Filholm did not satisfy his burden to allege facts amounting to prejudice with respect to this allegation. See State v. Marks, 286 Neb. 166, __ N.W.2d __ (2013).
As for Filholm's remaining arguments, we conclude that even if trial counsel would have objected on hearsay grounds to A.B.'s statement that Filholm raped her, the statement would have been admissible as an excited utterance. Neb. Rev. Stat. § 27-803(1) (Reissue 2008) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
For hearsay to be admissible under the excited utterance exception, statements need not be made contemporaneously with the exciting cause but may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993). The key requirement is spontaneity, a showing that the statement was made without time for conscious reflection. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
According to A.B.'s testimony, about 3 or 4 minutes after she realized the man who assaulted her had left but while she was still in the shower, she heard her family return home. A.B. got out of the shower, wrapped herself in a towel, walked upstairs, saw her older daughter, and said, "Mark [Filholm] just raped me." A.B.'s older daughter testified that when she encountered her mother, A.B. was shaking and looked like she had been crying.
A.B.'s statement made under these conditions meets all of the requirements of an excited utterance because it was made mere minutes after A.B. had been sexually assaulted, it related to the assault, and A.B. was still under stress from the assault. Therefore, even if Filholm's trial counsel had objected to the statement on the grounds of hearsay and moved to strike it from the record, such effort would have been unsuccessful. As we stated above, counsel cannot be ineffective for failing to make a motion, objection, or argument that has no merit. See State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). Accordingly, we conclude that Filholm did not receive ineffective assistance of counsel on this basis.
(d) Additional Witnesses
Filholm alleges that his trial counsel was ineffective because counsel failed to call two witnesses who would have placed Filholm at A.B. and Robert's house and in her car on the morning before the assault. Filholm testified that on the morning of June 24, 2011, he and Robert went to A.B. and Robert's house so Filholm could get a vehicle for a job Robert had arranged for him. Robert lent Filholm a vehicle that A.B. used to drive, and Filholm drove that vehicle to the jobsite. Filholm argues the testimony of these two witnesses would have provided an explanation for the presence of A.B.'s DNA on his hands. We conclude that the record on direct appeal is insufficient to resolve this claim.
(e) Remaining Claims
Finally, Filholm alleges that he received ineffective assistance of counsel in three additional respects. First, he claims his trial counsel failed to present testimony of a DNA expert witness and failed to effectively cross-examine the State's DNA expert. In addition, he claims his counsel, who preceded trial counsel, failed to obtain surveillance video and interview the bartender from one of the bars Filholm patronized that night and failed to timely interview Filholm's friend, James Felker. Finally, Filholm claims his trial counsel failed to file a motion for a new trial alleging juror misconduct based on Filholm's claim that a juror knew him from attending a party at Filholm's house and skewed the jury because he and Filholm did not get along at the party.
Filholm's brief on these remaining claims is limited to his general argument that he received ineffective assistance of counsel and a brief recitation of how his counsel's performance was deficient. Filholm does not allege how any of these actions prejudiced him. In fact, Filholm simply asserts that the record is not sufficient to review any of these allegations on direct appeal.
The issue with respect to these three claims is not the sufficiency of the record, but the sufficiency of the allegations. In order to prevail on a claim for ineffective assistance of counsel, a defendant must show that he or she was prejudiced by such deficiency. State v. Derr, 19 Neb.App. 326, 809 N.W.2d 520 (2011). When an appellant does not allege both prongs of ineffective assistance of counsel, "resolution of his assertions of ineffective assistance of counsel hinge[s] not on the adequacy of the record before us, but on his failure to provide this court with sufficient allegations of ineffective assistance of counsel." Id. at 329, 809 N.W.2d at 523. As we stated in Derr:
It is the responsibility of the appellate courts to determine whether the record presented on direct appeal is sufficient to address the claims of ineffective assistance of trial counsel when appellate counsel is different from trial counsel. Therefore, since Derr presumed the record was inadequate for review of these issues and failed to allege that any of counsel's actions prejudiced him or, stated another way, did not sufficiently allege his ineffective assistance of counsel claims, we are constrained to find that Derr's assertions of ineffective assistance of counsel are without merit.
19 Neb.App. at 327, 809 N.W.2d at 521-22. Accordingly, in the case of Filholm's final three claims, we find the allegations to be insufficient because he fails to allege how he was prejudiced by his counsel's performance.
(i) DNA Evidence
Filholm alleges that his trial counsel was ineffective because counsel failed to present testimony of a DNA expert witness and failed to effectively cross-examine the State's DNA expert. Filholm notes that the "DNA evidence did not show any DNA evidence at the scene which included [Filholm's] profile" and that a "fingernail scraper and finger swab from him mysteriously contained a profile that matched that of [A.B.], but was completely devoid of any alleles that might have been [Filholm's]." Brief for appellant at 28. Filholm does not allege what the testimony of a different DNA expert would have shown or what additional testimony should have been obtained from the State's DNA expert. Thus, he has failed to allege sufficient facts which, if proved, would establish a reasonable probability that the outcome of his case would have been different. This assertion has no merit.
(ii) Video and Witness Interviews
Filholm alleges that his counsel was ineffective because his original counsel, who was different from his trial counsel, failed to obtain surveillance video and interview the bartender from one of the bars Filholm patronized that night and failed to timely interview Felker. Filholm asserts that by the time Felker was interviewed, his memory was "skewed."
At trial, Filholm testified that he was drinking with Felker on the night of June 24, 2011, and that Felker left the bar around 9 p.m. Felker testified that he believed he left the bar around 10 or 10:30 p.m. Filholm does not allege how interviewing Felker sooner would have altered Felker's testimony or, ultimately, the outcome of the trial. Similarly, Filholm does not explain what evidence would have been obtained from the surveillance video or the bartender which would establish a reasonable probability that the outcome of his case would have been different had this evidence been obtained. Filholm's own testimony indicated that he left the last bar shortly after midnight and stopped at the restaurant around 12:30 a.m., providing enough time for him to assault A.B. before her family arrived home. Accordingly, Filholm did not satisfy his burden to allege facts amounting to prejudice with respect to this allegation.
(iii) Juror Misconduct
Filholm alleges that his trial counsel was ineffective because counsel failed to move for a new trial alleging juror misconduct. The first time this issue was raised before the trial court was at Filholm's sentencing by Filholm himself. Filholm does not claim that he informed his trial counsel he was familiar with the juror or, if he did, that he informed counsel in a timely manner so a motion for a new trial on this basis could be filed. Likewise, other than a conclusory statement, Filholm does not allege how he was prejudiced by this action. This assertion is without merit.
We conclude that the evidence was sufficient to support Filholm's conviction. The record on direct appeal is insufficient to address one of Filholm's ineffective assistance of counsel claims, but we reject his remaining claims because Filholm has not shown that he was prejudiced by his trial counsel's performance. Accordingly, we affirm his conviction and sentence.