State v. Nadeem

STATE OF NEBRASKA, APPELLEE, v. MOHAMMED NADEEM, APPELLANT.

No. A-10-981.

NEBRASKA COURT OF APPEALS

Filed February 26, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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: STEVEN D. BURNS, Judge. Reversed and remanded for further proceedings.

Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth D. Elliott for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges.

SIEVERS, Judge.

INTRODUCTION

Mohammed Nadeem appealed from a judgment and sentence rendered following a guilty verdict convicting him of the felony offenses of attempted first degree sexual assault and attempted third degree sexual assault of a child. In State v. Nadeem, 19 Neb. App. 565, 809 N.W.2d 825 (2012) (Nadeem I), we reversed the convictions, finding that it was plain error for the trial court to have used a procedure by which the identities of the jurors were largely hidden by assigning them numbers. Nadeem I was issued after we vacated our first opinion in this case on Nadeem's motion for rehearing. Our decision in Nadeem I was reversed by the Nebraska Supreme Court in State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012) (Nadeem II), which found that Nadeem, who was represented by counsel, waived any objection to the use of a numbers jury and that we erred in applying a plain error analysis with respect to the use of such a jury. The Supreme Court remanded the cause to us for consideration of the assigned errors which we did not address because of the outcome we reached in Nadeem I. We now address the otherassigned errors pursuant to the Supreme Court's remand. We reverse the convictions again based on ineffective assistance of trial counsel.

FACTUAL BACKGROUND

On August 6, 2009, H.K. was with a friend at a Lincoln public library. H.K. was 14 years old at the time. While H.K. was sitting at a table in a reading room of the library using her laptop computer, she noticed Nadeem, whom she did not know, standing within a couple feet of her looking at a newspaper and glancing over at her. Shortly thereafter, Nadeem began talking to H.K. and asked several questions, including how old she was, to which she replied 15. Nadeem asked H.K. for her telephone number. When she said it was her mother's number that she could not give him, he asked if he could give her his number, and she testified that she said, "I guess." Nadeem then left the area, and shortly thereafter, he returned and gave H.K. a piece of paper with a name, "John Nadeem," and a telephone number; asked her to call him; and told her he hoped to hear from her and to have a nice day. When H.K.'s mother later picked up H.K. and her friend from the library, H.K. told her mother about her encounter with Nadeem. H.K. and her mother reported the incident to the library and then called the police. The next day, the police asked H.K. to make a controlled call to Nadeem from the police station, which she agreed to do.

H.K. spoke with Nadeem and asked him why he wanted her to call. Nadeem indicated that he wanted to talk to her more and to see her. The conversation continued, and they began discussing what they would do together, which led to Nadeem's indicating that he wanted to touch H.K. When asked how, Nadeem said that he had a "grand collection of ideas" in regard to what type of touching. H.K. then volunteered to Nadeem that she was a virgin, and at that point, Nadeem asked H.K. if she wanted to lose her virginity and when she wanted to lose it. H.K. told him that she did not know how to do that, and he told her it could be done by "sexual stimulation" such as "licking," "kissing," and "fingering." When H.K. stated that she did not know what "fingering" meant, Nadeem said he could not explain it but he could show her. H.K asked Nadeem three times if they were going to have "sexual intercourse," but he appeared not to understand that term. When H.K. asked him if he was going to "put his penis in her vagina," he said he could. At H.K.'s suggestion, Nadeem and H.K. agreed to meet at the library about 30 minutes later, and H.K. told him to bring a condom and a can of a particular soda pop. Nadeem was arrested when he arrived at the library, shortly after the call, although he had neither of the requested items. At that time, Nadeem was 22 years old and H.K. was 14 years old, although she told Nadeem again during the telephone call that she was 15. We will set forth additional facts as needed for the analysis of the remaining assignments of error.

ASSIGNMENTS OF ERROR

Nadeem's remaining assigned errors for us on this remand are that (1) the evidence was insufficient to support the verdict of guilty of attempted first degree sexual assault and attempted third degree sexual assault of a child, (2) the district court erred by admitting testimony of prior "unusual behavior" exhibited by Nadeem in the library in the months leading up to this incident, (3) the district court erred by failing to give Nadeem's proposed jury instruction No. 2, (4) the district court abused its discretion by imposing excessive sentences, and (5) Nadeem received ineffective assistance of counsel.

STANDARD OF REVIEW

The scope of review in a criminal appeal is limited to the errors assigned and discussed in the appellant's brief and the appellate court's right to note plain error appearing on the record. State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).

An appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence. Such matters are for the finder of fact. State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id.

Because the exercise of judicial discretion is implicit in Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008), it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403 and 27-404(2) (Reissue 2008), and the trial court's decision will not be reversed absent an abuse of that discretion. Id.

ANALYSIS

Sufficiency of Evidence.

When an appellant claims that there was insufficient evidence to support a verdict of guilty, the appellate court will sustain the conviction if, "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." State v. Leonor, 263 Neb. 86, 93, 638 N.W.2d 798, 805 (2002). 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. State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).

Nadeem argues that the evidence failed to prove that he had the intent to commit the crimes charged. Under Neb. Rev. Stat. § 28-201(2) (Reissue 2008), it is necessary that

[w]hen causing a particular result is an element of the crime, a person shall be guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he or she intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.

In short, Nadeem had to have the intent to do the acts which he was charged with attempting and had to take a substantial step toward the acts. For the conduct to be considered a substantial step necessary for a conviction of an attempt crime, it must be "strongly corroborative of the defendant's criminal intent." § 28-201(3). Nadeem argues that the only evidence presented of a "substantial step" was that Nadeem showed up at the library at the right time, but that H.K. had specifically requested he bring a condom and a particular brand of soda pop and he brought neither item with him. Nadeem points out that an officer testified that it was important thatNadeem bring these items because it would show his intent to follow through on the sexual acts discussed in the telephone call. Therefore, Nadeem argues that the jury lacked sufficient evidence to find him guilty beyond a reasonable doubt because his actions did not strongly corroborate an intent to sexually penetrate H.K. or to have other sexual contact with H.K.

The State responds that Nadeem is attempting to change the standard of review. The State points out that the jury was instructed that "conduct shall not be considered a substantial step unless it is strongly corroborative of . . . Nadeem's criminal intent" pursuant to § 28-201. The jury was correctly instructed on what constitutes a substantial step in the context of an attempt charge. The State argues that the controlled call which involved discussion of both sexual contact and penetration, taken together with Nadeem's hurried arrival to the library at approximately the same time as he agreed to meet with H.K., evidenced his intent to perform both sexual contact and sexual penetration upon H.K. The jury clearly accepted that argument, and as stated in the "Standard of Review" section of this opinion, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. This is what Nadeem's argument asks us to...