State v. Smith, A-18-662.

STATE OF NEBRASKA, APPELLEE, v. MELVIN L. SMITH, APPELLANT.

No. A-18-662.

NEBRASKA COURT OF APPEALS

February 26, 2019

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, JODI L. NELSON, Judge, on appeal thereto from the County Court for Lancaster County, LAURIE J. YARDLEY, Judge. Judgment of District Court affirmed in part, and in part reversed.

Timothy S. Noerrlinger, of Naylor & Rappl Law Office, and, on brief, Megan R. Theesen, for appellant.

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

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

RIEDMANN, Judge.

I. INTRODUCTION

Melvin L. Smith appeals an order of the district court for Lancaster County affirming his conviction and sentence by the county court for Lancaster County for third degree domestic assault and dismissing two of his ineffective assistance of counsel claims. On appeal, Smith alleges that the district court erred in finding (1) harmless error in the admission of certain evidence, (2) that the evidence was sufficient to support his conviction, and (3) that he could not show prejudice on two of his ineffective assistance of counsel claims. We affirm in part and in part reverse.

II. BACKGROUND

The State filed a criminal complaint charging Smith with third degree domestic assault pursuant to Neb. Rev. Stat. § 28-323(1)(a) or (b) (Reissue 2016). The charge stemmed from an altercation between Smith and his ex-girlfriend, Tiffany Isley, which occurred in May 2017. A jury trial was held in the county court for Lancaster County in August.

At the trial, Isley testified that she had dated Smith for 6 years, but their relationship ended in 2016. Smith and Isley had lived together until their relationship ended; however, Smith had left some personal items at Isley's house after he moved out. On the day of the altercation, Smith contacted Isley to retrieve his personal belongings, and arrived at her house at 10 p.m. Isley testified that when she met Smith outside her house, he was very angry and upset, and called Isley a "bitch-ass ho." Isley stated that Smith then punched her in the face.

Isley further testified that after being punched she went inside her house and attempted to stop her nose from bleeding. Isley's daughter saw her as she was attempting to clean herself and called the police. Isley stated that Smith called her before the police arrived and told her, "if you put me in jail, I'm going to get out and beat your ass. Tiffany, you better not send me to jail on this bullshit." Once the police arrived at Isley's house, they took pictures of her face. Smith continued to call Isley while the police were present. Isley answered one call and placed her phone on speaker phone, where Smith stated, "I should come over there and beat your ass. You best believe that." Isley then accused Smith of punching her in the nose, to which Smith did not respond.

The prosecutor then asked Isley about subsequent phone calls she had received from Smith the weekend before trial. Isley testified that Smith was "rambling on, and screaming, and carrying on about me getting my ass whipped." Isley stated that Smith did not say anything specific about her testifying at trial.

The State also presented testimony from Isley's daughter and the two police officers who assisted Isley at her house; all three witnesses corroborated parts of Isley's account of the altercation. Isley's daughter testified that she looked out her window and saw Isley talking to Smith in the driveway. When Isley came back into the house, she was crying and upset and her nose was bleeding. Isley's daughter also stated that Smith repeatedly called Isley while the police were present at the house, and that Isley answered one call from Smith and put it on speaker phone.

Lincoln Police Officers Daniel Cleveland and Darryl Hume responded to Isley's house. Each officer testified that Isley's nose was bleeding and she was very distressed when they arrived. The officers also testified that Isley received a phone call from a man she identified as Smith while they were present, and Smith stated, "I should come over there and beat your ass. You best believe that."

Smith testified at trial that he had stored some possessions at Isley's house, and called her on the day of the altercation to pick up his belongings. Smith stated that as he started to back out of Isley's driveway, she reached in his car and tried to grab him by the face. Isley then started "patting her nose," and said that Smith had hit her. Smith testified that he saw Isley slap her nose over 10 times. Following his testimony, Smith informed the trial judge that he had a witness present who could "testify to the behavior of this woman." However, Smith's attorney informed the courtthat the witness was not present on the date of the altercation, and therefore her testimony was not relevant.

The jury subsequently found Smith guilty of third degree domestic assault. Smith was sentenced to 200 days in jail. Smith moved for a new trial, which was denied by the county court. Smith then appealed his conviction to the district court for Lancaster County. In his appeal, Smith argued that there was insufficient evidence to convict him of third degree domestic assault under § 28-323; the county court erred in overruling his motion for a new trial; and that he received ineffective assistance of counsel. The district court affirmed Smith's conviction, finding that any errors committed by the county court were harmless, Smith received effective assistance of counsel, and that there was sufficient evidence to convict him of third degree domestic assault. Smith timely appeals to this court.

III. ASSIGNMENTS OF ERROR

Smith assigns, restated, that the district court erred in finding (1) the admission of his subsequent phone calls to Isley without a hearing was harmless error, (2) that Smith received effective assistance of counsel, and (3) there was sufficient evidence to support Smith's conviction.

IV. STANDARD OF REVIEW

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record 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. Id.

In reviewing a criminal conviction for sufficiency of the evidence claim, whether the evidence is direct, circumstantial or a combination thereof, the standard is the same: 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. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016). The relevant question when an appellate court reviews a sufficiency of the evidence claim is whether, 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. Id.

V. ANALYSIS

1. ADMISSION OF SMITH'S SUBSEQUENT PHONE CALLS

Smith first asserts that the district court erred by finding that the county court's admission of subsequent phone calls Smith made to Isley the weekend before trial was harmless error. We disagree.

Smith argues that these subsequent phone calls were inadmissible under Neb. Rev. Stat. § 27-404(2) (Reissue 2016). Section 27-404(2) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, beadmissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

When seeking to admit evidence under § 27-404, the prosecution must prove by clear and convincing evidence that the defendant committed the crime, wrong, or act, and such proof must be established outside the presence of the jury. § 27-404(3). A trial court must then determine whether the evidence is independently relevant, which means its relevance does not depend on its ability to show propensity. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). When requested, the trial court must instruct the jury on the specific purpose or purposes for which it is admitting the extrinsic acts evidence under § 27-404(2). State v. Burries, supra.

At trial, the State questioned Isley regarding phone calls she received from Smith the weekend before trial. Isley testified that she answered some of the calls and recognized Smith's voice, and that Smith was "rambling on, and screaming, and carrying on about me getting my ass whipped." However, Smith did not object to the State's questioning of Isley regarding these subsequent phone calls. Thus, because Smith failed to object to the admission of the evidence, he waived his right to claim prejudicial error on appeal. See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to make timely objection waives right to assert prejudicial error on appeal).

On appeal, Smith urges this court to find that the county court's admission of the testimony regarding his subsequent phone calls to Isley was plain error. Plain error will be noted only where an error is evident from the record, prejudicially effects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). We...