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State v. Golyar

Supreme Court of Nebraska

November 9, 2018

State of Nebraska, appellee,
Shanna E. Golyar, appellant.

         1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for 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. 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.

         2. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. An appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.

         3. Homicide: Intent. A person commits first degree murder if he or she kills another person purposely and with deliberate and premeditated malice.

         4. Criminal Law: Homicide: Proof: Words and Phrases. In a homicide case, corpus delicti is the body or substance of the crime-the fact that a crime has been committed. It is not established until it is proved that a human being is dead and that the death occurred as a result of the criminal agency of another.

         5. Homicide: Circumstantial Evidence: Proof. The body of a missing person is not required to prove the corpus delicti for homicide. Instead, [301 Neb. 489] courts have generally held that circumstantial evidence associated with the victim's disappearance can be sufficient to establish the death.

         6. Homicide: Intent: Circumstantial Evidence: Proof. Purposeful, deliberate, premeditated murder may be proved circumstantially.

         7. Homicide: Intent: Words and Phrases. In the homicide context, deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act.

         8. ___: ___: ___. The term "premeditated" means to have formed a design to commit an act before it was done.

         9. Homicide: Intent. One kills with premeditated malice if, before the act causing death occurs, one has formed the intent or determined to kill the victim without legal justification.

         10. Homicide: Intent: Time. No particular length of time for premeditation is required, provided the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.

         11. ___: ___: ___. The design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed.

         12. Criminal Law: Evidence: Intent. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

         13. Arson. A person commits arson in the second degree if he or she intentionally damages a building or property contained within a building by starting a fire or causing an explosion.

         14. Arson: Circumstantial Evidence: Proof. Circumstantial evidence is sufficient to support a conviction for arson if such evidence and the reasonable inferences that may be drawn therefrom establish guilt beyond a reasonable doubt.

         15. Effectiveness of Counsel: Postconviction: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

         16. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.

         17. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does [301 Neb. 490] not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         18. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.

         19. ___: ___. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

         20. Effectiveness of Counsel: Jury Trials: Waiver. The decision to waive a jury trial is ultimately and solely the defendant's, and, therefore, the defendant must bear the responsibility for that decision.

         21. ___: ___: ___. Counsel's advice to waive a jury trial can be the source of a valid claim of ineffective assistance only when (1) counsel interferes with the client's freedom to decide to waive a jury trial or (2) the client can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of the right.

         22. Trial: Joinder. Prejudice from joinder cannot be shown if evidence of one charge would have been admissible in a separate trial of another charge.

         23. Trial: Constitutional Law: Testimony. A defendant has a fundamental constitutional right to testify.

         24. Trial: Attorney and Client: Testimony: Waiver. The right to testify is personal to the defendant and cannot be waived by defense counsel's acting alone.

         25. Trial: Attorney and Client: Testimony. Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make.

         26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: Waiver. Defense counsel's advice to waive the right to testify can present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel's tactical advice to waive the right was unreasonable.

          Appeal from the District Court for Douglas County: Timothy P. Burns, Judge.

          Thomas C. Riley, Douglas County Public Defender, Lori A. Hoetger, and Scott C. Sladek for appellant.

          [301 Neb. 491] Douglas J. Peterson, Attorney General, Sarah E. Marfisi, and Erin E. Tangeman for appellee.

          Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Moore, Chief Judge.

          Stacy, J.

         Cari Farver disappeared on November 13, 2012, and her body has never been found. About 4 years after Farver's disappearance, Shanna E. Golyar was charged with Farver's murder and with arson. At trial, the State introduced uncontested evidence that Golyar considered Farver a romantic rival and that Golyar posed as Farver (and others) for several years in emails, texts, and on social media. While posing as someone else, Golyar confessed in several emails to murdering Farver.

         Golyar was found guilty of first degree murder and second degree arson after a bench trial. She was sentenced to life imprisonment on the murder conviction and to a consecutive sentence of 18 to 20 years' imprisonment on the arson conviction. In this direct appeal, Golyar contends the evidence was insufficient to support the convictions and claims her trial counsel was ineffective in various ways. We affirm.

         I. FACTS

         1. Golyar Meets David Kroupa

         In late spring or early summer 2012, Golyar started dating David Kroupa after meeting him through an online dating site. Kroupa described the relationship as "[c]asual" and informed Golyar he was also dating other women. From almost the beginning, however, Golyar wanted a commitment from Kroupa. The State's general theory was that Golyar was obsessed with Kroupa and did not want him dating other women.

         2. Kroupa Meets Farver

         Near the end of October 2012, Kroupa met the victim in this case, Farver. Kroupa's first date with Farver was on October 29 at a restaurant in Omaha, Nebraska. During the date, Kroupa's [301 Neb. 492] cell phone began "blowing up" with calls and text messages from Golyar. He initially ignored the messages, but when they continued, he contacted Golyar and told her he was on a date and could not respond. When they left the restaurant, Kroupa and Farver went to Kroupa's nearby apartment.

         Almost immediately after they arrived, Golyar started ringing the bell at the security door of Kroupa's apartment building. Kroupa left Farver in his apartment and went to the security door to speak with Golyar. Golyar was crying and upset and insisted Kroupa let her in so she could retrieve some of her belongings from his apartment. Kroupa left Golyar at the security door and went back to his apartment to explain the situation to Farver. Farver decided to leave, and as she did so, she passed by Golyar, who was still standing by the security door. Farver got into her black Ford Explorer, which was parked near the security door, and drove away.

         After Farver left, Kroupa let Golyar into his apartment to retrieve her belongings. She was still upset and did not stay long before he asked her to leave. Not long after Golyar left, Kroupa and Farver spoke on the telephone and Kroupa then traveled to Farver's home in Macedonia, Iowa, where he spent the night.

         Kroupa and Farver continued to see a lot of each other over the next several weeks. Kroupa also continued to see Golyar during this time period. On November 9 or 10, 2012, Farver's Explorer was vandalized with spray paint while parked in Macedonia. Investigators subsequently learned that Golyar, via a Facebook account she had created under a false persona, claimed to be in Macedonia during that time period. That impos-ter Facebook account had also attempted to "friend" Farver.

         Farver worked in Omaha at a business not far from Kroupa's apartment. Starting Monday, November 12, 2012, she was beginning a weeklong project at work that would require her to work late hours. Farver arranged for her teenage son to stay with her mother and stepfather during that week, and Kroupa agreed Farver could spend the week with him at his apartment. Farver went to work as planned on Monday, November 12, [301 Neb. 493] and left work between 8 and 9 p.m. Her coworkers expected her at work the next morning. Farver spent the night with Kroupa at his apartment.

         Kroupa left for work on November 13, 2012, at approximately 6:20 a.m. At that time, Farver was awake and using her laptop computer. No one has seen Farver since.

         3. Farver's Cell Phone, Debit Card, and Facebook Account

         Records from Farver's employer showed she called in on the work project at 6:15 a.m. on November 13, 2012. Other records showed Farver logged into her Facebook account from Kroupa's apartment at 6:39 a.m. and logged out at 6:42 a.m.

         At 9:54 a.m., Farver's Facebook account "unfriended" Kroupa. At 10 a.m., Kroupa received a text from Farver's cell phone asking him if he wanted to live together. This surprised him, as he thought Farver agreed they were only involved in a casual relationship, and he responded, "No." Twenty seconds later, he received an angry text from Farver's cell phone breaking off the relationship.

         Also on November 13, 2012, Farver's cell phone texted Farver's mother. The text said Farver had found a new job, which surprised her mother. Farver's mother texted back over the course of the next several days and asked questions, including when Farver was coming to pick up her son for an upcoming family wedding, but received no response. This was unusual because Farver and her mother typically had daily contact. Farver's mother reported her daughter missing on Friday, November 16.

         On November 15, 2012, Farver's employer received a text from her cell phone, stating that she was resigning and was sending "Shanna Golyar" to replace her. Later that day, Golyar filled out an online application with the employer. On November 16, Farver's debit card was used to make purchases of $167.78 and $226.56 at two separate discount stores in Omaha. An item purchased at one of the stores was a shower curtain with a distinctive black-and-white floral pattern.

         [301 Neb. 494] On November 17, 2012, Farver's mother received another text from Farver's cell phone. It included a photograph of a check for $5, 000 made out to Farver and signed by Golyar, and asked Farver's mother to let Golyar into Farver's home to retrieve a bedroom set Golyar had allegedly purchased via the check. Farver's mother was suspicious about the text and contacted police. Police had Farver's service provider "ping" her cell phone to attempt to locate it, and the ping showed that in the early hours of November 18, the cell phone was at an Omaha location not far from Golyar's residence. Police searched for Farver's cell phone, but it was never found.

         Farver's Facebook account continued to be active after November 13, 2012, making posts and sending messages. Trial evidence demonstrated, however, that the account making the posts and sending the messages was actually an imposter account, created using photographs and information available on Farver's actual Facebook account. The imposter account making those posts was linked via digital evidence to Golyar. This imposter account attempted to contact both Farver's mother and Farver's teenage son. Photographs from Farver's original Facebook account were also used by Golyar to make online dating profiles in Farver's name.

         4. Harassment of Golyar and Kroupa

         Beginning in November 2012 and continuing until approximately December 2015, both Golyar and Kroupa began receiving frequent harassing texts and emails, purportedly from Farver. The texts came from as many as 30 different telephone numbers. The emails came from as many as 30 different email accounts. Kroupa alone received 50 to 60 such emails per day, in addition to frequent texts and missed telephone calls. The texts and emails frequently referred to Golyar as a "whore."

         Golyar reported vandalism to her property, allegedly by Farver, on November 23, 2012, and February 12 and April 1, 2013. Golyar also reported someone had broken into her garage prior to November 23, 2012, and stolen checks [301 Neb. 495] from her. Kroupa reported vandalism to his property in July. October, and December 2013. Many of these acts of vandalism involved messages referring to Golyar as a "whore." Each time an act of vandalism occurred, Kroupa, Golyar, or both would receive a text or email from "Farver" taking responsibility for the act. The acts of vandalism tended to occur at times when Kroupa was becoming less interested in Golyar, and the two were drawn back together by their mutual fear or dislike of Farver.

         In January 2013, with Kroupa's consent, the police downloaded information from his cell phone to obtain data related to the texts and emails purportedly sent by Farver. At the same time, with Golyar's consent, police also downloaded similar information from her cell phone. The downloads were "logical" downloads, which did not include data previously deleted from the devices.

         5. Todd Butterbaugh

         Todd Butterbaugh met Golyar in September 2010 through an online dating site, and they dated until September 2015. Butterbaugh understood the relationship was exclusive. During the course of that relationship, Butterbaugh helped Golyar with her bills, helped her buy a car, let her move into his residence with her two children, and cared for her children.

         In January 2013, Butterbaugh began receiving text and email messages, purportedly from Farver. In those messages, "Farver" explained she was one of Golyar's friends and Golyar had given her Butterbaugh's contact information in case "Farver" ever needed an emergency contact for Golyar. When Butterbaugh asked Golyar about the messages, she confirmed this and said Farver was her friend. In general, the texts and emails between "Farver" and Butterbaugh discussed Butterbaugh's relationship with Golyar. Butterbaugh did not learn of Kroupa until Golyar's cell phone was downloaded by the police. At that time, Golyar told Butterbaugh she had dated Kroupa before she met Butterbaugh and that they had remained friends.

         [301 Neb. 496] Golyar and her two children moved in with Butterbaugh in July 2013 and stayed until December 2015 or January 2016. During the time she dated and lived with Butterbaugh, Golyar did not tell him she was being harassed by Farver or anyone else. While staying with Butterbaugh, Golyar had access to his Wi-Fi network and several ...

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