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State v. Lee

Supreme Court of Nebraska

October 11, 2019

State of Nebraska, appellee.
v.
Talon J. Lee, appellant.

         1. 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.

         2. 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 admissibility.

         3. 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 discretion.

         4. 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 performance.

         5. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         6. 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 court.

         7. 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.

         8.__: __. 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.

         9. 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.

         10. 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 reversal.

         11.__:__. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         12. 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.

         13. 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 evidence.

         14. 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.

         15. 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.

         16. 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 defense.

         [304 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.

         18.__:__. 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.

         19. Effectiveness of Counsel: Records. Trial counsel cannot be ineffective for failing to do that which the record affirmatively establishes was done.

         20. Hearsay. Statements are not hearsay if they are offered to show the effect on the listener.

          Appeal from the District Court for Douglas County: Gary B. Randall, Judge.

          Stephen P. Kraft for appellant.

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.

         I. NATURE OF CASE

         Defendant 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 district court.

         II. FACTS

         1. Charges

         On 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 trial.

         2. Motion in Limine

         Prior 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.

         The 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.

         Subsequently, 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 relationship.

         3. Lee's Rule 412 Motion

         Lee 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."

         [304 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 allegations.

         Lee 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.

         The 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.

         The 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 of [Lee].

         [304 Neb. 258] 4. Trial

         At 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, Nikisha Lee.

         (a) Incidents

         Testimony from R.W., M.B., and the victims' mothers established the following facts.

         From 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.

         The 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 alleged incidents.

         After 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.

         R.W. 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.

         R.W. 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."

         R.W. 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 private part."

         M.B., 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 no.

         R.W. 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.

         According 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 occurred.

         [304 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.

         R.W. 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.

         R.W.'s 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.

         R.W.'s 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 school."

         On June 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.

         (b) Dr. Cynthia Hernandez

         R.W. 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 occurred.

         [304 Neb. 263] (c) Law Enforcement

         The 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).

         Amber 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 ...


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