State v. Barber
| Decision Date | 08 September 2020 |
| Docket Number | No. A-18-1097.,A-18-1097. |
| Citation | 28 Neb.App. 820,948 N.W.2d 306 |
| Parties | STATE of Nebraska, appellee, v. Jesse D. BARBER, appellant. |
| Court | Nebraska Court of Appeals |
Mark E. Rappl, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Jesse D. Barber was found guilty of first degree sexual assault following a jury trial in Dawes County, Nebraska, on September 6 and 7, 2018. In this direct appeal, we affirm the judgment of the district court as to errors raised. With the exception of the ineffective assistance claim relating to the jury instructions, we cannot reach the ineffective assistance of counsel claims for the reason that the trial record is insufficient.
The charges against Barber arose out of a sexual assault of A.N. in Barber's home. In 2017, Barber was charged as follows:
On or about June 29, 2013, ... Barber, the Defendant, then and there being, in Dawes County, Nebraska, did subject another person to sexual penetration without consent of the victim, or knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of her conduct, in violation of Section 28-319, a Class II Felony.
Barber was acquainted with A.N. because he had been dating her mother since May 2013. Barber lived in a house by himself in Chadron, Nebraska. A.N. lived in Chadron with her father. A.N.’s mother lived near Omaha, Nebraska. At the time of the incident, A.N. was 17 years old and had just finished her junior year of high school. Barber was 27 years old and employed by his family's landscaping and floral business.
On the evening of June 28, 2013, A.N. was drinking vodka and wine coolers at a party at a friend's house. A.N. ultimately vomited in the bathroom, and at that point, she decided she wanted to leave the party and go to sleep. A.N. was afraid to go home to her father's house because she knew he would be angry and disappointed about her behavior. A.N. was not as worried about her mother's reaction, so she called her mother for ideas about what to do. A.N.’s mother suggested that A.N. go to Barber's house, so A.N. set off on foot. In the meantime, A.N.’s mother called Barber to let him know A.N. was on her way and that it was all right with her that A.N. sleep at his house.
While A.N. was walking to Barber's house, she came to the attention of a neighbor who noticed her struggling to walk down the street. The neighbor observed A.N. losing her balance and walking out of her sandals, so he left his porch and approached her to ask if she needed help. The neighbor believed A.N. to be under the influence of alcohol, so he walked with her because he was afraid that if she fell down, she might pass out on the sidewalk. While they were walking, the neighbor overheard A.N. call Barber a total of four times to get directions to his house. During the fourth call, Barber's house was visible and the neighbor observed the front door open and a man standing against the doorjamb. As he watched A.N. approach Barber's house, he decided this situation had the potential to go very badly, so he decided to notify law enforcement about the situation and suggest they perform a welfare check.
Officer Aron Chrisman responded and was dispatched to Barber's house in response to a call about a highly intoxicated female. Barber answered the door and acknowledged that his girlfriend's daughter was inside and that she was drunk. Chrisman found A.N. lying on the bed in the bedroom, awake and fully clothed, and determined she was intoxicated, due to her slurred speech. Chrisman was the school resource officer at A.N.’s school, so he was familiar with her as a high school student. Chrisman learned from A.N. that she had her mother's permission to sleep at Barber's house, so he told her to stay put and he left after 2 or 3 minutes. Chrisman did not follow up with either of A.N.’s parents nor did he investigate the party.
A.N. went to sleep and has no memory of the overnight hours. When A.N. woke up in the morning, she was fully clothed and all her clothes were in the proper places. By this time, Barber was in the kitchen "on the phone" with A.N.’s mother, cooking breakfast and doing laundry. A.N. noticed blood on the bedding, and when she asked Barber about it, he said, " " Barber then told A.N. he had performed oral sex on her. A.N. did not believe Barber's account until Barber showed her naked pictures of herself which he had stored on his cell phone. A.N. asked Barber to delete the pictures, and he complied. After they ate breakfast together, Barber drove A.N. back to her car that had been parked near the site of the party.
Barber's version of the facts differs only in that he claims A.N. initiated oral sexual contact after several hours of sleep, so he reciprocated. Barber also testified that they then proceeded to have "sex in a missionary style." Barber denied that A.N. ever told him to stop and stated that because she initiated the encounter, he believed she had the capacity to consent to the sexual activity.
At the end of the State's evidence and again at the close of Barber's case, Barber moved for a directed verdict on the theory that there was no evidence that A.N. lacked the ability to consent at the time of the act nor was there proof of penetration without consent. The court concluded whether or not A.N. had the capacity to consent was a jury question, because there was ample evidence she was very intoxicated and sufficient evidence of penetration.
The jury returned a guilty verdict, and Barber immediately filed a motion for a new trial that was considered and denied at the sentencing hearing. Barber was sentenced to a term of incarceration of 10 to 12 years in the custody of the Nebraska Department of Correctional Services. This direct appeal followed, filed by different counsel than the counsel representing Barber at trial.
Barber raises three distinct errors. First, the district court erred in denying his motion for new trial, because the only evidence of penetration was Barber's admission, which is insufficient and uncorroborated. Second, the district court erred in instructing the jury as to "without consent" and failing to instruct the jury that the burden of proof never shifts to Barber. And third, Barber received ineffective assistance of counsel before trial and during trial.
The standard of review for the denial of a motion for new trial is whether the trial court abused its discretion in denying the motion. State v. Briggs , 303 Neb. 352, 929 N.W.2d 65 (2019).
Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Dady , 304 Neb. 649, 936 N.W.2d 486 (2019).
Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. Id.
Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Id.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Filholm , 287 Neb. 763, 848 N.W.2d 571 (2014). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Filholm, supra.
Barber argues the district court erred in denying his motion for new trial, because the evidence was insufficient to support his conviction. Barber argues the State failed to prove the corpus delicti of first degree sexual assault. The corpus delicti of a crime is the body or substance of a crime—the fact that a crime has been committed. See State v. Torwirt , 9 Neb. App. 52, 607 N.W.2d 541 (2000). The corpus delicti may be proved by circumstantial evidence. Id. Extrajudicial admissions or a voluntary confession is insufficient to prove that a crime has been committed, but either or both are competent evidence of the fact and may, with corroborative evidence of facts and circumstances, establish the corpus delicti and guilty participation of the defendant. Hoffman v. State , 160 Neb. 375, 70 N.W.2d 314 (1955). See, also, State v. Scott , 200 Neb. 265, 263 N.W.2d 659 (1978).
Other than his own admission to A.N. in his kitchen, Barber argues there was no evidence establishing that penetration occurred. Consequently, Barber claims his extrajudicial statements cannot be sufficient to establish the corpus delicti and his guilty participation. The rule that the corpus delicti cannot be proved by the extrajudicial admission of the defendant is true as a general proposition, yet confessions or admissions may be considered in connection with the other evidence to establish the corpus delicti. It is not necessary to prove the corpus delicti by evidence entirely independent and exclusive of the confession or admissions. See Limmerick v. State , 120 Neb. 558, 234 N.W. 98 (1931). See, also, Egbert v. State , 113 Neb. 790, 205 N.W. 252 (1925) (...
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...raising an objection on appeal absent plain error. State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016); State v. Barber, 28 Neb. App. 820, 948 N.W.2d 306 (2020). Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record......
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