State v. Iratukunda

1

State of Nebraska, appellee, v. Nuru P. Iratukunda, appellant

No. A-22-973

Court of Appeals of Nebraska

November 7, 2023

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 Douglas County: SHELLY R STRATMAN, Judge.

Benjamin Lee Bramblett for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE.

I. INTRODUCTION

Nuru P. Iratukunda appeals his convictions in the district court for Douglas County for three counts of first degree sexual assault of a child. He challenges the district court's rulings on motions in limine, whether the evidence was sufficient to convict him, and whether his trial counsel was effective in representing him. Based on the reasons that follow, we affirm.

II. BACKGROUND

In February 2022, the State filed an amended information charging Iratukunda, who was 23 years old, with three counts of sexual assault of a child in the third degree, Class IB felonies, all of which occurred between May 24, 2019, and May 23, 2020. The victim, V.U., was Iratukunda's minor cousin and was living with Iratukunda and his family at the time of the assaults. The State subsequently filed two motions in limine, one of which included a notice of intent to offer evidence pursuant to Neb. Evid. R. 404(2) (admissibility of "other acts" evidence), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022). The trial court granted both motions.

A jury trial was held in February and March 2022. The evidence showed that when V.U. was 10 years old, her mother had her move to Omaha from Idaho to live with Neema Samira. Samira's mother and V.U.'s grandmother are sisters. Samira's two children, Queen and Iratukunda, lived in the home. When V.U. first came to live with Samira, Samira's friend and her two children were also living in the home. They moved out in February 2020 and Iratukunda's girlfriend, Pauline Lino, also known as Hope, moved into the home. V.U. was 12 years old at the time of the trial.

Deborah Heckman, a resource paraprofessional at V.U.'s school, testified that she worked with V.U. at school and developed a close relationship with her. V.U. trusted Heckman and would confide in her. In early February 2021, Heckman called child protective services (CPS) after V.U. sent an email to her with a picture of V.U. crying and the reason why she was crying. Heckman testified that V.U. told her in an email exchange that Iratukunda had pulled her hair and/or beat her up. Heckman subsequently called CPS. Previously there had been other calls made to CPS by other adults at the school regarding physical abuse of V.U.

On February 24, 2021, V.U. was removed from her home because of physical abuse and was initially placed with Heckman. After a couple days, Heckman noticed a change in V.U.'s behavior when she was around Heckman's husband. She asked V.U. if someone had touched her inappropriately and V.U. told her Iratukunda had touched her. Heckman did not ask her anything further. She called CPS and was told to bring V.U. to Project Harmony. V.U. was subsequently placed with someone else.

Heckman testified that on April 5, 2021, her husband received text messages on his phone addressed to Heckman. The first message indicated that Heckman was falsely accusing "that young boy." Heckman responded to the message, asking "Who are you talking about?" The response was "Nuru, that boy [you] accused of rape." Heckman testified that based on the response, she had no doubt that someone from Iratukunda's family was sending the messages. There was another text message she felt was threatening toward her and her family, and another one that stated she "won't have peace." The sender of the messages did not identify himself or herself and Heckman admitted she did not know who sent the texts, but knew it was not Iratukunda because he was incarcerated at the time. The State offered the text messages as evidence and Iratukunda objected based on foundation. The court overruled the objection.

V.U. testified and described the sexual abuse she experienced from Iratukunda. She first testified about one specific incident that occurred in Iratukunda's bedroom on his bed. She testified that Iratukunda told her to pull her pants down and she did because she did not know what to expect and she did not want to get a "whooping." She said her shirt was on, but her pants were either pulled down or all the way off, and she thought Iratukunda had his clothes off. V.U. testified that when Iratukunda put his hand in her vagina he asked her how it felt, and she told him that it hurt. After Iratukunda removed his hand, he asked V.U. if she wanted to have sex and she told him "No." Iratukunda then told her to stand up and pull up her pants, which she did. He then told her to open her mouth and he pulled down his underwear and put his penis in her mouth. Iratukunda was not wearing a shirt and his pants were all the way off. He said something to her that she could not recall and then told her she could leave. V.U. testified that when she left, she felt "weirded out" and confused. She stood outside the door for a minute thinking about what had just happened and then went to get her toothbrush and brushed her teeth. V.U. stated that this was the only time he put his penis in her mouth.

She also testified that on the same day he put his penis in her mouth, Iratukunda put his penis in her vagina. She was laying on her back on his bed. Her shirt was on, but her pants were off. She believed all Iratukunda's clothes were off. He told her to spread her legs and she did as he asked because she was afraid he would physically abuse her. She testified that when he put his penis in her vagina it felt weird, and it hurt. She stated she was relieved when it was over.

V.U. testified that Iratukunda touched the inside of her vagina with his hand more than once. She testified that on another occasion the two of them were in the bathroom when Iratukunda put his hand inside her vagina. She explained that the two of them were in the bathroom because Iratukunda told her he was going to give her a shower because he did not believe she had already taken one. Iratukunda said he was going to wash her because she was not doing it right. While he was washing her, he touched the inside of her vagina. Iratukunda told her not to tell anyone about what he had done.

V.U. also testified that Iratukunda made her read her diary in front of Samira, Queen, and Hope and she had written in there that Iratukunda had touched her. No one took any action following her disclosure. V.U. also stated that she told Samira that Iratukunda had touched her, but she did not do anything about it. V.U. eventually told Heckman about the touching when she was living with her.

Detective Juan Jimenez of the Omaha Police Department testified that V.U. was brought into Project Harmony for a forensic interview based on allegations of physical and sexual abuse. He observed the forensic interview, during which V.U. disclosed physical and sexual abuse by Iratukunda.

Jimenez subsequently interviewed Iratukunda at the police station and Iratukunda corroborated V.U.'s allegations regarding physical abuse or discipline. He denied any sexual abuse had occurred. At the end of the interview Iratukunda was arrested.

Janessa Michaelis performed the forensic interview of V.U. at Project Harmony. She testified about the forensic interview process in general and then V.U.'s recorded interview was played for the jury. In the interview, V.U. revealed sexual abuse by Iratukunda consistent with her testimony at trial. Michaelis testified that she did not have any concerns about V.U.'s suggestibility or coaching during the interview because of the additional details V.U. provided beyond just disclosing the sexual abuse.

Jessica Tippery, a nurse practitioner at Project Harmony, performed a forensic exam on V.U. after the forensic interview. She testified that prior to the exam, Michaelis informed Tippery that V.U. had disclosed physical and sexual abuse by Iratukunda over the past year. Tippery then talked to V.U. before doing the exam and V.U. disclosed that Iratukunda had hit her on her shoulder, upper arm, legs, back, and butt and sometimes hit her with a belt, a stick, or toys. V.U. also told Tippery that when she would get in trouble, Iratukunda would make her kneel with her arms above her head.

V.U. also disclosed to Tippery that Iratukunda had touched the inside of her vaginal area with his hand more than once. When asked how it made her feel she said "disgusted" and said that it hurt. V.U. also told Tippery that Iratukunda put his penis inside her vagina on one occasion. It made her feel "disgusted, grossed out, and uncomfortable." She further revealed that Iratukunda put his penis in her mouth one time. She stated that this all occurred when she was 10 years old. Tippery testified that V.U.'s account of what had happened was consistent with the information reported to her by Michaelis. During the physical exam, she did not find any injuries, but did not expect to find any based on the information she had at the time. V.U. declined an exam of her genital area, which is not uncommon for children to do.

Several witnesses testified on Iratukunda's behalf. Iratukunda's girlfriend, Hope, testified that in 2019 she stayed overnight at Samira's home some of the time. In February 2020, she moved into Samira's home. She helped take care of V.U. when Samira was at work. She made sure V.U. went to school and was home when V.U. returned after school. Hope also made sure V.U. did her...