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State v. Abejide

Supreme Court of Nebraska

June 3, 2016

STATE OF NEBRASKA, APPELLEE,
v.
ABEJIDE ABEJIDE, ALSO KNOWN AS GAYLORD MASON, APPELLANT

          Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge.

         Joseph D. Nigro, Lancaster County Public Defender, and Kristi J. Egger Brown for appellant.

         Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, and CASSEL, JJ.

          OPINION

          [293 Neb. 688] Miller-Lerman, J.

         I. NATURE OF CASE

         Abejide 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.

         II. STATEMENT OF FACTS

         Abejide 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 alley.

         A 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.

         After 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 defense.

         At the 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.

         The 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.

         The 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.

         The 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.

         Abejide appeals his convictions and sentences.

         III. ASSIGNMENTS OF ERROR

         Abejide 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.

         IV. 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.

          In 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).

          An 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).

         V. ANALYSIS

         1. 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 proposed instructions.

         (a) Attempted First Degree Sexual Assault Instruction

         Abejide 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.

          We 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 contention.

          In 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 675, ...


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