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Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Dennis R. Keefe, Lancaster County Public Defender, and Webb E. Bancroft for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ.
[289 Neb. 103] Connolly, J.
Curtis H. Lavalleur appeals from his conviction for attempted first degree sexual assault. The district court ruled that the rape shield statute, Neb. Rev. Stat. § 27-412 (Cum. Supp. 2012), prohibited Lavalleur from introducing evidence that the complaining witness was in an intimate relationship with a third party. Lavalleur sought to cross-examine the complaining witness about the relationship to establish a motive to falsely report that she had not consented to sexual activities with Lavalleur. On appeal, Lavalleur argues that evidence of an intimate relationship, standing alone, is not within the scope of the rape shield statute. We agree. We reverse, and remand for a new trial.
The complaining witness, M.J., testified that in August 2012, she was working at a used-car dealership at which Lavalleur was the assistant manager. They socialized outside [289 Neb. 104] of work but were not intimate. Lavalleur said that in July 2012, he told M.J. that he was developing feelings for her and that if the feelings were not reciprocal, they should distance themselves. M.J. told him she wanted to just be friends.
On August 17, 2012, Lavalleur and M.J. planned to repossess a vehicle together but changed their minds because it was too risky. Sometime before midnight, M.J. discovered that she was locked out of her apartment and asked Lavalleur to pick her up. M.J. testified that she had smoked marijuana before calling Lavalleur and wanted to drink at his house.
Once at Lavalleur's residence, Lavalleur and M.J. went to the basement and drank alcoholic beverages made by Lavalleur in a blender. M.J. testified that she had about four drinks and was very tired but not drunk; she did not feel sick or dizzy. Lavalleur testified they played drinking games and flirted.
According to M.J., sometime before they were ready to retire, she asked Lavalleur not to make her sleep alone in the basement. He said that she could sleep on a bed in the basement and that he would sleep on a nearby couch. M.J. testified that she remembered getting into bed but
that she then fell into a deep sleep. When she awoke the next morning, she was naked from the waist down and Lavalleur, similarly unclothed, was lying next to her. M.J. said she could not remember anything when she woke up. Some of M.J.'s testimony suggested that Lavalleur might have drugged her. For example, M.J. testified that she did not see him mix the drinks and knew that consuming four drinks would not have made her " blackout like that." Lavalleur said they were drinking from the same blender.
According to Lavalleur, when M.J. said she was tired, he started upstairs for bed but she asked him not to leave her alone. Encouraged, Lavalleur retrieved a blanket and lay next to her. M.J. was on her side, and Lavalleur was behind her. Lavalleur believed M.J. was awake because she thanked him when he gave her the blanket. Lavalleur testified that he caressed M.J.'s body and that she responded with moaning and heavy breathing. Lavalleur testified that M.J.'s shorts were unbuttoned and unzipped when he entered the bed and [289 Neb. 105] that he took this as further encouragement. Lavalleur began to stimulate her genitalia with his fingers and, after she did not resist, removed her shorts. Lavalleur testified that her responsive movements aided him in removing her shorts. But, Lavalleur testified, when his penis touched her leg, M.J. moved her hand back and said " no." Lavalleur did not believe it was a " firm" no and began to stimulate her with his fingers again. Lavalleur testified that M.J. did not resist the digital penetration but that, when he tried to position himself for intercourse again, she firmly told him no. At that point, Lavalleur testified, he was discouraged and went to sleep. In a police interview played for the jury, however, Lavalleur said that he tried to have intercourse with M.J. two or three times after she said no.
In the morning, M.J. did not accuse Lavalleur of misconduct, talk to him about their nakedness, or try to call anyone. Lavalleur said that when his alarm went off, M.J. was sitting on the couch and he thought she was hung over. On the way to work, M.J.'s silence was uncomfortable, so Lavalleur asked whether she remembered the previous night. She said she did not, and he told her they did not have intercourse. M.J. agreed that Lavalleur had briefly talked about the incident and assured her that things had not gone too far.
An hour after she got to work, M.J. called her roommate to pick her up so she that could shower at her apartment. After they got back to the apartment, M.J. testified, she told her roommate what happened. She planned to " let it go," but her roommate encouraged her to report the incident.
About 11:30 a.m., M.J., who had not showered, went to the hospital and was examined for sexual assault evidence. M.J. gave a statement to a police officer summoned by hospital personnel that was consistent with the testimony above. She vaguely remembered saying " no" to Lavalleur but could not remember where he touched her. M.J. told the officer that Lavalleur had touched her but that " it wasn't a big deal."
At the hospital, M.J. began text messaging Lavalleur and she agreed to send controlled messages at the officer's suggestion. The messages sent by Lavalleur were generally [289 Neb. 106] consistent with his testimony at trial. He admitted to digitally penetrating M.J. but denied penile penetration. In response to M.J.'s accusation that she was unconscious, Lavalleur replied that he thought she was " somewhat still awake" because she responded to his touch. Lavalleur's messages also expressed
regret, including statements that he had become " the very thing i hate" and " didn't know [he] was capable of doing something like that." Lavalleur testified that he expressed remorse because M.J. was obviously upset and he wanted to placate rather than argue.
There was no sperm found on any of the vaginal swabs from the sexual assault collection kit. The kit also contained swabs from M.J.'s thighs, breasts, and neck. Lavalleur was a weak contributor to a DNA sample from the swab of M.J.'s right thigh. The forensic scientist who tested the swab of M.J.'s right thigh testified that the DNA sample was not semen and that its source may be other bodily fluid or skin cells.
The State charged Lavalleur with first degree sexual assault and attempted first degree sexual assault. Before trial, the State moved in limine to exclude evidence of M.J.'s past sexual behavior and Lavalleur filed a notice of his intent to offer evidence under § 27-412. At the pretrial hearing, Lavalleur explained that he wanted to show that M.J. had an intimate relationship with a third party with whom she had a fight on August 17, 2012. Lavalleur argued that the relationship showed that M.J. had a motive to falsely report a sexual assault. Lavalleur stated that he would not question M.J. about her sexual conduct but might ask whether the relationship was intimate.
The district court excluded evidence of M.J.'s relationship with the third party under § 27-412. In response to Lavalleur's argument that the exclusion violated his confrontation rights, the court stated that the relationship was relevant only if M.J. had a need to conceal or explain her whereabouts on the night of August 17, 2012. The court reasoned that unless M.J.'s partner was aware that M.J. had spent the night with Lavalleur when M.J. first reported the assault, the relationship was irrelevant.
[289 Neb. 107] At trial, defense counsel made an offer of proof out of the jury's presence by questioning M.J. about her relationship with a woman who was not her roommate. M.J. admitted that she was involved with a woman named " Sable" and that they had a fight on August 17, 2012, and were still fighting when M.J. went to Lavalleur's house. M.J. testified that she called Lavalleur to pick her up because Sable would not answer her telephone. Sable visited M.J. at the hospital, and M.J. told her that she had awoke without pants and suspected that something happened.
The jury found Lavalleur not guilty of first degree sexual assault but guilty of attempted first degree sexual assault, which is a Class III felony. The court sentenced Lavalleur to imprisonment for 24 to 36 months.
III. ASSIGNMENTS OF ERROR
Lavalleur assigns, restated, that the court erred by (1) prohibiting evidence of M.J.'s relationship with a third party; (2) failing to properly instruct the jury on attempted first degree sexual assault; and (3) imposing an excessive sentence. Lavalleur also assigns that (4) he was denied effective assistance of counsel and (5) the ...