from the District Court for Lancaster County: Paul D.
Merritt, Jr., Judge.
D. Nigro, Lancaster County Public Defender, and Kristi J.
Egger Brown for appellant.
J. Peterson, Attorney General, and Nathan A. Liss for
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, and CASSEL, JJ.
Neb. 688] Miller-Lerman, J.
NATURE OF CASE
Abejide, also known as Gaylord Mason, was convicted by a jury
of attempted first degree sexual assault and terroristic [293
Neb. 689] threats. The district court for Lancaster County
found Abejide to be a habitual criminal and sentenced him to
imprisonment for 10 to 20 years for attempted first degree
sexual assault and for 10 to 10 years for terroristic
threats. Abejide appeals his convictions and sentences. His
assignments of error challenge the court's refusal to
give certain proposed instructions, the sufficiency of the
evidence, the effectiveness of trial counsel, and the alleged
excessiveness of his sentence. We affirm Abejide's
convictions and sentences.
STATEMENT OF FACTS
was arrested and charged with attempted first degree sexual
assault and terroristic threats in connection with an
incident that occurred on May 24, 2014. At Abejide's jury
trial, the victim testified that she was walking to a grocery
store when a man she knew called out to her. The man was
Howard Mason, who is Abejide's brother. The victim
crossed the street to talk with Mason, who was on the
sidewalk drinking beer with a few other people, including
Abejide. She talked and drank beer with the group for a
while. At some point, Mason and Abejide got into an argument
and Mason left. Later, as the victim was leaving, Abejide
pulled her into an alley, where he started choking her and
told her he was going to " knock [her] out." The
victim testified that she thought that Abejide was going to
kill her. She further testified that she thought that Abejide
was trying to rape her, because he pushed her against a wall
and pulled her pants down and took his own pants down. She
testified that Abejide told her that he was going to do
something which she understood to mean that he was going to
sexually assault her. The victim started screaming and told
him to stop. The next thing she remembered was that a police
officer arrived and handcuffed Abejide. The victim testified
that she had never met Abejide before that day and that she
did not consent to having sexual intercourse with him in the
Lincoln police officer testified that he received a call to
respond to a report of a possible domestic disturbance in an
alley. He parked his patrol car nearby and walked to the
alley. When he turned a corner, he saw Abejide holding a
woman face first against the wall. The woman's pants were
pulled down and Abejide's penis was exposed. The officer
testified that the woman appeared " shaken," "
upset," and " fearful" and that when she saw
him, she said, more than once, " 'Help me. He's
trying to rape me.'" The officer pulled Abejide away
from the woman and put him into handcuffs. The officer and
another officer who later arrived at the scene of the
incident both testified that Abejide appeared to be
intoxicated but that he was able to comply with instructions
and could walk on his own.
the State rested its case, the court overruled Abejide's
motion to dismiss the terroristic threats charge. Abejide did
not move to dismiss the attempted first degree sexual assault
charge, and he did not thereafter present any evidence in his
jury instruction conference, the court refused a number of
Abejide's proposed instructions, three of which are at
issue in this appeal. The first proposed instruction was an
instruction which included attempted third degree sexual
assault as a lesser-included offense of attempted first
degree sexual assault. The court instead gave an instruction
which set forth no lesser-included offense to attempted first
degree sexual assault.
second proposed instruction at issue in this appeal was an
instruction setting forth the elements of the offense of
terroristic threats. Abejide's proposed instruction [293
Neb. 690] required the jury to reach unanimous agreement
regarding whether Abejide acted with the intent to terrorize
the victim or whether he acted in reckless disregard of the
risk of causing terror to the victim. The court instead
instructed the jury that it " need not agree unanimously
on whether . . . Abejide intended to terrorize [the victim]
or acted in reckless disregard of terrorizing [the
victim]," so long as the jury agreed unanimously that
the State established either state of mind of the defendant
beyond a reasonable doubt.
third and final proposed instruction at issue in this appeal
was an instruction setting forth an intoxication defense and
instructing the jury that it could consider evidence of
Abejide's intoxication in deciding whether he had the
required intent or whether he was so overcome by the use of
alcohol that he could not have formed the required intent. In
refusing Abejide's proposed instruction, the court cited
Neb. Rev. Stat. § 29-122 (Cum. Supp. 2014), which
generally provides that voluntary intoxication is not a
defense to any criminal offense and may not be considered in
determining the existence of a mental state of the defendant
where mental state is an element of the offense. The court
noted that to the extent there was evidence that Abejide was
intoxicated, there was no evidence that his intoxication was
not voluntary. The court therefore instructed the jury that
it could not consider Abejide's voluntary intoxication in
deciding whether he had the required intent. Abejide objected
to the court's instruction on the basis that it
unconstitutionally diminished the State's burden to prove
each and every element of the offense and that § 29-122
improperly imposed a burden on Abejide to present evidence
which might require him to give up other constitutional
rights, such as the right to remain silent. The court
overruled Abejide's objection.
jury found Abejide guilty of both attempted first degree
sexual assault and terroristic threats. After the court
entered judgment based on the jury's verdicts, the court
held a hearing to consider the State's charge that
Abejide was a habitual criminal. Based on evidence presented
by the State, the court found that Abejide had three prior
convictions, each of which involved a sentence of not less
than 1 year: a conviction in 1994 for attempted first degree
sexual assault of a child, for which he was sentenced to
imprisonment for 6 to 9 years; a conviction in 2007 for a
violation of the Sex Offender Registration Act (SORA), second
offense, for which he was sentenced to imprisonment for 2 to
4 years; and a conviction in 2011 for a violation of the
SORA, for which he was sentenced to imprisonment for 20
months to 4 years. The court further found that Abejide was
represented by counsel in each prior conviction. The court
found that Abejide was a habitual criminal. The court
thereafter sentenced Abejide to imprisonment for 10 to 20
years for attempted first degree sexual assault and for 10 to
10 years for terroristic threats; the court ordered the
sentences to be served consecutively to one another.
appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
claims that the district court erred when it rejected his
proposed jury instructions regarding attempted third degree
sexual assault as a lesser-included offense of attempted
first degree sexual assault, the elements of terroristic
threats and the requirement of unanimity with regard to the
defendant's state of mind, and the intoxication defense.
He also claims that there was not sufficient evidence to
support the verdicts and that he was denied effective
assistance of counsel [293 Neb. 691] in certain respects.
Abejide finally claims that the court imposed an excessive
sentence. In connection with the claim of an excessive
sentence, Abejide argues that his prior convictions for
violations of the SORA should not have been used to support a
finding that he was a habitual criminal.
STANDARDS OF REVIEW
Whether the jury instructions given by a trial court are
correct is a question of law. State v. Armagost, 291
Neb. 117, 864 N.W.2d 417 (2015). When reviewing questions of
law, an appellate court resolves the questions independently
of the conclusion reached by the lower court. Id.
reviewing a claim that the evidence was insufficient to
support a criminal conviction, 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, and a conviction will be affirmed, in the
absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is
sufficient to support the conviction. State v.
Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
appellate court will not disturb a sentence imposed within
the statutory limits absent an abuse of discretion by the
trial court. State v. Russell, 292 Neb. 501, 874
N.W.2d 9 (2016).
The District Court Did Not Err in Its Rulings
Regarding Jury Instructions
Abejide claims that the district court erred when it rejected
his proposed jury instructions on the offense of attempted
first degree sexual assault, the offense of terroristic
threats, and the defense of intoxication. To establish
reversible error from a court's refusal to give a
requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of
the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's refusal to give the tendered instruction.
Armagost, supra. We conclude that the district court
did not commit reversible error when it refused each of the
Attempted First Degree Sexual Assault Instruction
proposed an elements instruction which included attempted
third degree sexual assault as a lesser-included offense of
attempted first degree sexual assault. The court refused
Abejide's proposed instruction and instead gave an
instruction which set forth no lesser-included offense.
Abejide contends that the jury should have been instructed on
attempted third degree sexual assault as a lesser-included
offense. We reject Abejide's contention.
addressed this issue in State v. Kibbee, 284 Neb.
72, 815 N.W.2d 872 (2012), wherein the defendant claimed that
the trial court erred when it refused to instruct the jury on
third degree sexual assault as a lesser-included offense of
first degree sexual assault. We noted in Kibbee that
whether a crime is a lesser-included offense is determined by
a statutory elements approach and is a question of law. Under
the statutory elements approach, for an offense to be a
lesser-included offense, it must be impossible to commit the
greater offense without also committing the lesser offense.
With respect to whether third degree sexual assault is a
lesser-included offense of first degree sexual assault, [293
Neb. 692] we adopted the reasoning of the Nebraska Court of
Appeals in State v. Schmidt, 5 Neb.App. 653, 562
N.W.2d 859 (1997), and rejected the defendant's
Schmidt, the Court of Appeals concluded that
attempted third degree sexual assault is not a
lesser-included offense of attempted first degree sexual
assault. The Court of Appeals reasoned that, given the
statutory definitions applicable to sexual assault crimes, it
is possible to have " sexual penetration," an
element of first degree sexual assault, without having "
sexual contact," an element of third degree sexual
assault, and that therefore, the crime of first degree sexual
assault can be committed without at the same time committing
third degree sexual assault. Schmidt, 5 Neb.App. at