State of Nebraska, appellee.
Talon J. Lee, appellant.
Rules of Evidence: Other Acts: Appeal and
Error. An appellate court reviews for abuse of
discretion a trial court's evidentiary rulings on the
admissibility of a defendant's other crimes or bad acts
under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2016), or under the inextricably intertwined
exception to the rule.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
Rules of Evidence: Appeal and Error. Where
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of
Effectiveness of Counsel: Appeal and Error.
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
Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
Rules of Evidence: Other Acts. Inextricably
intertwined evidence includes evidence that forms part of the
factual setting of the crime, is so blended or connected to
the charged crime that proof of the charged [304 Neb. 253]
crime will necessarily require proof of the other crimes or
bad acts, or is necessary for the prosecution to present a
coherent picture of the charged crime.
__. The State is entitled to present a coherent picture of
the facts of the crime charged, and evidence of other conduct
that forms an integral part of the crime charged is not
rendered inadmissible under Neb. Evid. R. 404, Neb. Rev.
Stat. § 27-404 (Reissue 2016), merely because the acts
are criminal in their own right, but have not been charged.
Jury Instructions: Proof: Appeal and Error.
In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
Jury Instructions: Appeal and Error. All the
jury instructions must be read together, and if, taken as a
whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
the evidence, there is no prejudicial error necessitating
Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
Sentences: Appeal and Error. When a trial
court's sentence is within the statutory guidelines, the
sentence will be disturbed by an appellate court only when an
abuse of discretion is shown.
Judgments: Words and Phrases. Abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Sentences. The appropriateness of a sentence
is necessarily a subjective judgment and includes the
sentencing judge's observation of the defendant's
demeanor and attitude and all the facts and circumstances
surrounding the defendant's life.
Effectiveness of Counsel: 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.
Effectiveness of Counsel: Proof. To prevail
on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the defendant must show that his
or her counsel's performance was deficient and that this
deficient performance actually prejudiced the defendant's
Neb. 254] 17.__:__ . To show deficient performance in a claim
of ineffective assistance of counsel, a defendant must show
that counsel's performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable
probability that but for counsel's deficient performance,
the result of the proceeding would have been different.
Effectiveness of Counsel: Records. Trial
counsel cannot be ineffective for failing to do that which
the record affirmatively establishes was done.
Hearsay. Statements are not hearsay if they
are offered to show the effect on the listener.
from the District Court for Douglas County: Gary B. Randall,
Stephen P. Kraft for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
was charged with two counts of sexual assault of a child in
the first degree, one count of attempted sexual assault of a
child in the first degree, one count of sexual assault of a
child in the third degree, and one count of incest with a
victim age 17 or under. After trial, a jury found defendant
guilty and convicted him on all charges. The district court
sentenced him to an aggregate period of 100 years' to
life imprisonment, plus an additional imprisonment term of 32
to 73 years. Defendant appeals his convictions and sentences.
On appeal, defendant assigns a number of evidentiary errors,
including errors involving Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2016) (Rule 403); Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404 (Reissue 2016) (Rule 404); and
Neb. Evid. [304 Neb. 255] R. 412, Neb. Rev. Stat. §
27-412 (Reissue 2016) (Rule 412). Defendant also alleges that
the district court inappropriately instructed the jury
regarding venue in this case. We affirm the decision of the
September 19, 2017, the State of Nebraska charged Talon J.
Lee with two counts of sexual assault of a child in the first
degree, a Class IB felony; one count of attempted sexual
assault of a child in the first degree, a Class II felony;
one count of sexual assault of a child in the third degree, a
Class IIIA felony; and one count of incest with a victim age
17 or under, a Class IIA felony. The charges arose from
reports of Lee's sexual abuse against R.W., Lee's
10-year-old daughter, and another girl, M.B., who was 9 to 10
years old at the time of the alleged abuse. Lee pled not
guilty to the State's charges, and the case proceeded to
Motion in Limine
to trial, the State made a motion in limine seeking to admit
at trial evidence of a sexual assault of R.W. that occurred
in Iowa shortly after the incidents of sexual assault of R.W.
and M.B. being charged in this case. Specifically, the State
wished to introduce at trial witness testimony as to
R.W.'s statements that Lee sexually penetrated her, made
her "play with his private part," and snowed her
pornographic videos at Lee's Iowa home approximately 3
months after the incidents occurring in Nebraska. The
State's motion alleged that this evidence was relevant
and admissible because it was inextricably intertwined with
Lee's current charges and, thus, not subject to Rule 404.
Alternatively, the State alleged the testimony was admissible
under Rule 404(2) and Neb. Evid. R 414, Neb. Rev. Stat.
§ 27-414 (Reissue 2016) (Rule 414). The State withdrew
its argument regarding Rule 414, however, prior to the
hearing. The defense claimed that the Iowa incident should be
excluded because, unlike other incidents [304 Neb. 256] found
to be admissible under our case law as inextricably
intertwined, the Iowa assault was not one continuous chain of
events. Further, defense counsel pointed out that according
to R.W.'s allegations, the incident in Iowa was the last
incident to occur. So, according to the defense, the Iowa
incident formed no part of the factual setting of the
Nebraska charges and was not inextricably intertwined.
district court granted the State's motion, ultimately
entering two orders on the matter. In its first order,
entered March 19, 2018, the court found that the Iowa
incident was relevant and material to the State's
charges. As such, the district court concluded that the
evidence related to the Iowa incident was inextricably
intertwined to the State's charges. In the alternative,
the district court concluded that the evidence of the Iowa
incident was admissible under Rule 414.
the district court entered a second order nunc pro tunc to
its previous order, where it removed its analysis and
conclusion relating to Rule 414, but reaffirmed its finding
that the evidence was inextricably intertwined. In doing so,
the district court stated:
[T]he evidence of sexual abuse in Council Bluffs[, ] Iowa
is inextricably intertwined with the other allegations of
sexual abuse [Lee] perpetrated on his daughter over the
period of time alleged by the State and is so blended or
connected to the charged crimes that it will be necessary
to show a complete and coherent picture of this
Lee's Rule 412 Motion
filed a pretrial motion to obtain permission to adduce
testimony about R.W.'s having been sexually abused in the
past by her biological brother. According to Lee's
motion, this evidence was relevant to show that someone other
than the accused was the "source of injury" to R.W.
Lee's motion alleged that such evidence was admissible
under Rule 412 and that the exclusion of such evidence would
"violate [his] constitutional rights."
Neb. 257] At the hearing on Lee's Rule 412 motion, Lee
asserted that during the investigation in this case, R.W.
disclosed that she was sexually abused by her brother at some
point around 2016, when she was approximately 10 years old.
R.W. reportedly indicated that her brother tried to penetrate
her with his penis in the same way that Lee did. Lee
acknowledged that R.W.'s brother had not been adjudicated
of the allegations, but noted that there was a juvenile
proceeding pending against him pertaining to these
argued that this alleged prior sexual assault of R.W. was
relevant to show how R.W. had a "prior source of sexual
knowledge." In other words, Lee explained, the jury
would likely be wondering how R.W., as a 10-year-old child,
could possess the type of sexual knowledge she has if she was
not sexually abused by Lee. The fact she has been sexually
abused by her brother in the past would show why she has such
knowledge and that it came from a source other than Lee.
State disagreed and argued that this evidence was
inadmissible and improper because it would lead to a
credibility debate regarding R.W. 's allegations in the
separate and unrelated matter, which would create "a
trial within a trial.'' Based on this, the State
argued that any probative value of the incident would be
outweighed by the danger of unfair prejudice.
district court denied Lee's motion and ruled that the
evidence at issue was inadmissible. The district court
entered a written order on the matter, which concluded:
There is no evidence the acts of [R.W.'s brother] have
any relevance to the sexual assault committed by [Lee] or
that the sexual behavior of R.W. incident to being assaulted
by [her brother] in any way contributed to any physical
injury of R.W. The court does not find the same to be
relevant nor material to the charges against [Lee] nor would
exclusion of this evidence violate the constitutional rights
Neb. 258] 4. Trial
trial, the State elicited testimony from both victims; the
victims' mothers; several members of law enforcement from
both Omaha, Nebraska, and Iowa; and a physician who examined
R.W. The State also called witnesses employed by Project
Harmony, a child advocacy center that serves children when
there have been allegations of abuse, who were involved in
the investigation. The Project Harmony employees included a
pediatric nurse who examined and interviewed R.W. and M.B.
and a forensic interviewer who examined and interviewed R.W.
and M.B. The defense offered testimony from Lee's wife,
from R.W., M.B., and the victims' mothers established the
the fall of 2016 to the spring of 2017, Lee was living with
Nikisha in Council Bluffs, Iowa. R.W. lived with Lee and
Nikisha in November and December 2016. Aside from those 2
months, R.W. lived in Omaha with her mother.
victims' mothers testified that they knew each other
because they both have children with Lee. Lee fathered at
least one of M.B.'s siblings. R.W. would often spend time
with M.B. and her siblings. Lee would occasionally watch R.W.
and M.B. when he was in Omaha, which is when the alleged
incidents occurred. Lee was 29 years old at the time of the
R.W. moved back to Omaha to live with her mother, R.W. and
her mother stayed for a few weeks with one of R.W.'s
mother's friends, Jasmine Kelly. One night at
approximately 5 p.m., while they were staying with Kelly, Lee
arrived unannounced and took R.W. to a store. When Lee and
R.W. were leaving for the store, R.W.'s mother also left
to run an errand. R.W.'s mother testified that this
errand took about 30 to 45 minutes. When she returned to
Kelly's house, Lee and R.W. were still gone. R.W.'s
mother testified that she called Lee to find out where they
were, because it was a school night and [304 Neb. 259] R.W.
needed to get home. Lee responded that they were "down
the street" and would be home soon. As more time passed
and Lee and R.W. still were not home, R.W. 's mother
continued to call Lee. R.W.'s mother testified that she
called Lee roughly 50 times that night and that Lee answered
only a couple of those calls. Lee eventually brought R.W.
home around midnight.
testified that after she and Lee left Kelly's house that
night, Lee drove her to a "dark place" where there
was a building with gates and a "bunch of trees."
Lee parked the car and asked R.W., "Can you do me a
favor?" R.W. agreed, and Lee proceeded to suck on her
finger and say '"no teeth.'" Lee then asked
her to suck his "private part" and told her he
would take her to the store afterward. Lee put his
"private part" in her mouth, and she sucked on it
until "[s]ome stuff went into her mouth, which she said
tasted "[n]asty." R.W. testified that her mother
called Lee's cell phone several times but Lee told her
not to answer it, so she did not. Lee also told her not to
tell anyone about what happened. He took her to the store and
eventually back to Kelly's house. R.W. testified that she
did not tell anyone what happened when she got back to
Kelly's home, because she was scared.
testified that another incident of abuse occurred when she
was having a sleepover with M.B. at M.B.'s house. R.W.
and M.B. woke up when they heard a deep voice downstairs. The
girls went downstairs and learned that the voice was
Lee's. R.W. and M.B. then sat on the couch and started
playing "Truth or Dare." Eventually, Lee sat
between them and told the girls that they were going to play
"Dirty Truth or Dare."
testified that Lee made M.B. do the first dare and told her
to suck his "private part" and said, "[Y]ou
got to wake him up," referring to his penis as
"him." Lee told M.B. to "play with it" to
"wake it up," and she complied. Lee told her to
suck it, and it "got bigger in her mouth." Then,
according to R.W., while M.B. was sucking on Lee's penis,
Lee told R.W. to pick a dare, which she did, and he
"made me play with it while she was sucking it."
Lee then had R.W. and M.B. take [304 Neb. 260] turns sucking
it. R.W. testified that as this was going on, Lee also played
a video on his cell phone of "[a] girl sucking a boy
through her testimony, confirmed that she and R.W. played a
game of "Dirty Truth or Dare" with Lee in her
basement the morning after R.W. spent the night. She
testified that when she or R.W. would pick a dare, he would
ask them to suck his "private part" or to lick each
other's "boobs," but that they said no. Then,
he asked R.W. "to let him finger her," but R.W.
again said no. M.B. said she and R.W. went upstairs for a
while. When they came back downstairs, Lee was on his cell
phone "watching porn," which she described as girls
with no clothes touching each other and doing "nasty
things." Then, according to M.B., Lee pulled R.W. over
next to him and told R.W. to "lick his private
part," which R.W. did. M.B. stated that Lee then made
M.B. move her hand up and down on his penis. M.B. testified
that Lee also asked her to suck his penis but that she said
and M.B. testified that on another day at M.B.'s house,
they played "Hide and Seek" with Lee. When Lee
found where R.W. and M.B. were hiding, he told them to kiss
each other. Lee wanted them to kiss on the lips or to put
their tongues in each other's mouths, but they kissed on
the cheek instead. R.W. testified that Lee also made them
strip down to their underwear and a tank top and that he
touched both of them on the buttocks.
to R.W. and M.B, on one of the same days that they played
"Truth or Dare" or "Hide and Seek," Lee
called R.W. and M.B. into M.B.'s mother's bedroom,
where Lee was lying on the floor next to the bed. Lee asked
the girls to "sit on his private part," which
neither of them did. According to M.B., Lee then pulled R.W.
toward him and had her sit on his stomach. R.W. testified
that she thought Lee had his clothes on during this incident,
but M.B. testified that he did not have any clothes on and
recalled seeing his "private part" when this
Neb. 261] R.W. testified about another incident, involving
only R.W. and Lee, which occurred at Lee and Nikisha's
house in Council Bluffs. R.W. testified that one day, when
Nikisha was not home, Lee was lying on the bed in his bedroom
and he called her into the room to ask for a
"favor." They watched another pornographic video,
and Lee asked R.W. to play with his penis. R.W. complied.
R.W. testified that Lee told her to take off her pants, which
she did. Lee then stood up behind her and put his penis
inside her buttocks and vagina. R.W. testified that it hurt,
so she told Lee she needed to go to the bathroom, where she
noticed that she was bleeding from her anus. When she told
Lee about it, he told her to get into the bathtub. R.W.
testified that this incident in Council Bluffs was the last
time Lee did anything to her, although on cross-examination,
she gave differing responses on the timeline of the sexual
assaults. Lee objected to the evidence about the Council
Bluffs incident on Rule 404 grounds. Lee received a
continuing objection on these grounds to the testimony
relating to the incident in Council Bluffs.
testified that she did not initially tell anyone about any of
these incidents, because Lee had told her and M.B. that he
would "make up a bad lie" about them if they ever
did so. Later that summer, however, in June 2017, R.W.
decided to tell M.B.'s aunt about what Lee had been doing
to her while she was at M.B.'s mother's house with
M.B. M.B.'s aunt relayed this disclosure to M.B.'s
mother, who, in turn, told R.W.'s mother.
mother testified that she got a call from M.B.'s mother
on the night of June 22, 2017, while she was at work.
R.W.'s mother immediately called R.W. and spoke with her
about what she'd heard from M.B.'s mother. R.W.'s
mother testified that when R.W. told her about the incident
in Lee's car, it all "ma[de] sense," because
she remembered "calling, calling, calling"
Lee's cell phone on the night he took R.W. to the store.
R.W.'s mother called M.B.'s mother again after that,
[304 Neb. 262] because, based on what R.W. told her, it
appeared the abuse also involved M.B.
mother testified that she left work that night to take R.W.
to an emergency room. She said that after the abuse was
revealed, R.W. started acting out at school and getting into
fights, and that she eventually got "kicked out of
23, 2017, after speaking further with M.B., M.B.'s mother
filed a police report regarding the sexual assault of M.B.
M.B.'s mother testified that when she spoke with M.B.
about what she had heard, M.B. started to cry and eventually
told her things that had happened, which disclosure led to
her decision to file a police report. M.B.'s mother
confirmed that her house was in Omaha and said that she could
recall three times that Lee came over to her house and
watched the children in February and March 2017.
was seen at an emergency room in the early morning hours of
June 23, 2017. The doctor who examined R.W., Dr. Cynthia
Hernandez, testified that she spoke with R.W. about why she
was there. R.W. told her that on one occasion, Lee put his
penis in her mouth until "white stuff came out, and that
on another occasion, he put his penis in her vagina and anus,
which caused her to bleed. Hernandez testified that R.W. told
her that one of the incidents occurred about 1 month earlier
and the other about 2 months earlier. When Hernandez examined
R.W., she did not find any signs of physical injury and
referred R.W. to Project Harmony for a more detailed
examination. Hernandez explained that this was not surprising
given how much time had passed since the incidents. Hernandez
also testified that, in general, it is not uncommon in cases
of sexual assault for there to be no physical signs of
trauma. However, on cross-examination, Hernandez agreed that
signs of internal injury, especially with anal penetration,
could possibly be detected months after an assault had
Neb. 263] (c) Law Enforcement
State elicited testimony from several law enforcement
officers who were involved in the joint investigation that
was being conducted by the Omaha Police Department (OPD) and
the Council Bluffs Police Department (CBPD).
Kennedy, the lead detective for CBPD, testified that the date
range for CBPD's investigation was January 1 to May 13,
2017. Kennedy described that Project Harmony had originally
referred the case to CBPD. She had watched the video-recorded
forensic interview and determined it contained evidence to
show that a crime had been committed in Omaha and also in
Council Bluffs. After reviewing all of the evidence, CBPD
decided that OPD needed to be involved as well, because it
appeared that their investigations would overlap. Kennedy
testified that CBPD and OPD were aware of each other's
investigations and maintained communication throughout the
investigations, which ultimately led to Lee's arrest.
Though it was asserted ...