State v. Brown, A-17-278.

STATE OF NEBRASKA, APPELLEE, v. JESUS D. BROWN, APPELLANT.

No. A-17-278.

NEBRASKA COURT OF APPEALS

July 17, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, Webb E. Bancroft, and Katherine E. Lesiak, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

PIRTLE, RIEDMANN, and BISHOP, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Following a jury trial in the district court for Lancaster County, Jesus D. Brown was convicted of first degree sexual assault. Brown was sentenced to not less than 16 years nor more than 20 years in prison. On appeal, Brown asserts he was denied a fair trial, he asserts his trial counsel was ineffective, he challenges the sufficiency of the evidence, and he asserts the sentence imposed was excessive. For the reasons that follow, we affirm.

II. PROCEDURAL BACKGROUND

On December 4, 2015, Brown was charged by information with first degree sexual assault, a Class II felony, in violation of Neb. Rev. Stat. § 28-319(1)(a) and (b) (Reissue 2016). The charges arose out of an incident which occurred in the early morning hours of September 27, The offensewas alleged to be an aggravated offense as it involved the sexual penetration of a woman, C.S., when he knew or should have known that she was mentally or physically incapable of resisting or appraising the nature of his conduct or which involved the penetration of C.S., a person 13 years of age or older, without her consent. See Neb. Rev. Stat. § 29-4001.01(1)(a) and (c) (Supp. 2015).

A jury trial was held January 3 through 9, 2017. At the close of the State's evidence, Brown moved to dismiss the information, and the motion was overruled. He renewed his motion to dismiss at the close of evidence, asserting the State had not presented a prima facie case of first degree sexual assault. His motion was overruled.

The jury found Brown guilty of the charged crime and the court accepted the jury's verdict. Brown filed a motion for new trial on March 8, 2017. The State objected to the motion as it was not timely filed, in accordance with § 29-2103 (Reissue 2016). After a hearing, the court overruled Brown's motion for new trial.

Brown was sentenced to not less than 16 years nor more than 20 years in prison, and the sentence was ordered to run consecutive to any other sentence he was serving at that time. Brown timely appealed.

III. FACTUAL BACKGROUND

C.S. is employed as a dispatcher/jailer for a county sheriff's office in Nebraska. On September 26, 2015, she drove approximately 3 hours from her home to visit her sister, F.F., in Lincoln. C.S., F.F., and a few friends went to several bars in downtown Lincoln and C.S. had multiple alcoholic beverages. She was refused entry at the last bar they visited, because she was determined to be too intoxicated. She had trouble walking, standing, and dropped her identification when she tried to give it to the bouncer. She waited outside of the bar for her sister to come out. Earlier in the evening, F.F. had mistakenly left her keys in a friend's car, so F.F. and C.S. did not have access to F.F.'s car or her home. Another friend, Katrina, agreed to give them a ride.

Katrina gave C.S. and F.F. a ride to Cornell Culver Sr.'s house, and they arrived around 2 a.m. C.S. did not know anyone in the house, except for F.F., but she was introduced to Cornell and Brown. Cornell's son and some friends were also in the home. C.S., F.F., Cornell, and Brown sat at the dining room table and talked. C.S. drank two beers and smoked cigarettes.

C.S. talked to Brown, and she noticed that he had an ankle monitor. She knew that an ankle monitor indicated that he was on parole, and she began talking with him about the difference between prison and the jail where she worked. They also talked about tattoos, as Brown had several visible tattoos. They did not hold hands or hug, they did not kiss, they did not make plans to get together at a later date, they did not discuss "hooking up," they did not discuss their sex lives, and she did not give any indication that she was interested in him romantically. C.S. testified that Brown did not make her feel uncomfortable and he did not say anything inappropriate.

At some point between 2 and 5 a.m. Brown asked for a ride from someone to charge his ankle monitor, and he left. C.S. testified that she asked someone to buy her a double cheeseburger and a pack of cigarettes. She recalled receiving the items and her change, and eating the cheeseburger. At around 5 a.m., she told her sister that she was tired and Cornell gave permission for her to sleep in his room. She laid down on the bed with F.F. and fell asleep. F.F. testified thatonce C.S. was asleep, she went back downstairs and then went outside to sit with Cornell in his truck.

C.S. woke up to "intense pressure" and biting on her neck, and it was painful. She realized that a man's penis was inside of her, but it was dark in the room and she did not know who was on top of her. She pretended to be asleep because she was afraid, she did not know where her sister was, and she did not know anyone else in the home. After approximately 5 minutes the man ejaculated and then laid down on top of her. She testified that when she fell asleep she was fully clothed. When she woke up she was not wearing her jeans or underwear, and she had not removed the clothing items herself. She was still wearing a bra, a "spaghetti strap," a tank top, and a long-sleeved shirt.

She tilted her body to roll the man off of her and then picked up her phone and texted her sister. F.F. did not respond. C.S. put on her glasses, pants, and shoes. She found her underwear on the floor and put it in her purse. As she left the room there was enough light to see a half-naked man with no pants on. She did not stop to see who the man was.

F.F. testified that approximately 20 to 30 minutes after she left Cornell's bedroom she received a phone call from C.S. F.F. told C.S. that she was outside and when C.S. came to find her, she was crying and hugged F.F. hard. She told F.F. that she woke up with a man on top of her. F.F. asked if they should call 911 and Cornell told her not to. He said he would "handle it." Cornell testified that he heard C.S. say, "He raped me." When he went upstairs, he found Brown asleep on his bed and Brown's pants were not covering his buttocks. Cornell told Brown to leave because C.S. had alleged that Brown had raped her and the police had been called. Cornell testified that Brown seemed confused, then he "took off."

F.F. called 911 and a recording of the call was entered into evidence as an exhibit. While C.S. talked to dispatch, F.F. went upstairs to find her wallet and saw Cornell standing over by the mattress and Brown laying on the bed with his pants down. F.F. saw Brown leave the house.

C.S. gave a statement to the responding officer, investigator Michael Ripley, at Cornell's house. She was crying and upset when she spoke to the police officers and reported that she woke up to pain and pressure on her head and neck and she realized once she was fully awake that someone was having sex with her. She reported that she was too scared to move or fight back and she waited for the man to stop. She gave a statement at the police station. Then C.S. was transported to the hospital for a forensic examination of her body to collect biological and trace evidence, and to note injuries throughout her body.

Sue Gabriel is a registered nurse and sexual assault nurse examiner (SANE). She explained the procedure for SANE examinations, which take approximately 3 to 4 hours to complete. She conducted the sexual assault examination of C.S. beginning at 9:25 a.m. on September 27, 2015.

Gabriel observed two areas of bruising on the right side of C.S.' neck, and indications that the areas had been bitten. She found redness along the right side of the labia and the inner side of the labia, and two tears. The police had collected C.S.' underwear and Gabriel collected the rest of C.S.' clothing. She took fingernail scrapings and photos, performed pubic hair combings, took a blood sample for DNA comparison, and took oral, cervical, vaginal, and rectal swabs. C.S. also reported that her jaw popped, which had not happened before the incident. During the examination, C.S. was "quiet and very cooperative." Gabriel testified that C.S.' injuries were not of the type thatare consistent with "normal consensual sex, unless it's rough." Testing of swabs taken from C.S.' neck showed Brown's DNA. Testing of sperm fractions from C.S.' cervical swabs show Brown as the contributor.

C.S. testified that she had bite marks on her neck, a tear at the bottom of her vagina, and a tear on the side of her labia. She also experienced worsening of her depression and anxiety as a result of the incident. F.F. testified that the bruises on C.S.' neck were not present when they went to the bars or when C.S. went to sleep in Cornell's room.

Brown testified that on September 26, 2015, he bought and consumed alcohol, and went with a few friends to a bar to play pool. He went with a group back to Cornell's house and everyone was listening to music, drinking, and talking. He testified that he talked to C.S. and there was nothing intimate about how they interacted; there was no hand holding, touching, kissing, or hugging. Brown noticed that his ankle monitor needed to be charged and he left with Cornell's son. They stopped at Brown's house to pick up the charger and then stopped to buy food to share with the people at Cornell's house.

At one point, he went to the restroom at Cornell's house and when he came back, everyone else had left the kitchen and living room area. He went...