State v. Abligo
| Decision Date | 29 July 2022 |
| Docket Number | S-21-457 |
| Citation | 312 Neb. 74 |
| Parties | State of Nebraska, appellee, v. Komla Abligo, appellant |
| Court | Nebraska Supreme Court |
1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
2. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
5. Sexual Assault: Evidence. Nebraska's rape shield statute is not meant to prevent defendants from presenting relevant evidence, but to deprive them of the opportunity to harass and humiliate the complaining witness and divert the jury's attention to irrelevant matters.
6. Evidence: Proof. The bar for establishing evidentiary relevance is not a high one and requires only the probative value of the evidence to be something more than nothing.
7. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.
8. Rules of Evidence: Testimony: Proof. Generally, the foundation for the admissibility of text messages has two components: (1) whether the text messages were accurately transcribed and (2) who actually sent the text messages. Testimony concerning context or familiarity with the manner of communication of the purported sender is sufficient foundation for the identity of the sender and is typically in combination with testimony that the cell phone number belonged to or was regularly utilized by the alleged sender. The proponent of the text messages is not required to conclusively prove who authored the messages.
9. Rules of Evidence: Hearsay: Appeal and Error. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence, which an appellate court reviews for clear error.
10. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the crime.
Appeal from the District Court for Douglas County: James M Masteller, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Korey T. Taylor Tamara T. Mosby, and Hilary Burrows, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
On April 16, 2019, the State charged Komla Abligo by information with one count of first degree sexual assault, a Class II felony. The State alleged that Abligo sexually assaulted A.A. after a night of drinking alcohol and partying with Abligo's roommate, Robert Capers, and Angel Bils.
After multiple delays, a jury trial was held in the matter on March 8, 2021, after which the jury found Abligo guilty of first degree sexual assault. The district court sentenced Abligo to 4 to 10 years' imprisonment, with 87 days' credit for time served. Abligo appealed, and we moved this case to our docket. We affirm.
On March 11, 2019, AA. told her former foster mother, with whom she still had a relationship, that she had been sexually assaulted several days prior. Upon learning of the alleged assault, AA.'s foster mother took her to a hospital for medical care, and law enforcement was notified. Officer Mark Magill was assigned to investigate the incident and was dispatched to the hospital.
At the hospital, nurse Carla Idrees performed a sexual assault nurse examination (SANE exam). AA. explained to both Idrees and Magill the circumstances surrounding the assault, stating that it occurred on the morning of March 6, 2019, after she had spent the night drinking at Abligo's and Capers' apartment; a friend, Bils, was also present that night. While recounting the events, AA. identified Abligo as her assailant. Later, AA. provided to Magill screenshots of text messages from her phone, purportedly showing an exchange between herself and Abligo discussing the incident.
On March 16, 2019, Magill interviewed Abligo at the police station. After waiving his Miranda rights, Abligo admitted that he had sex with A.A., but claimed that he and AA. were both still drunk that morning. Abligo also admitted that he had believed AA. was Bils, with whom Abligo had a sexual relationship, and stated that he was not interested in AA. in a sexual manner. Following this interview, Abligo was arrested. In April 2019, the State filed an information charging Abligo with one count of sexual assault in the first degree, a Class II felony.
A jury trial was originally scheduled for October 2019, but was continued to March 30, 2020, after the court granted Abligo's oral motion to continue. Abligo requested a second continuance, and the trial was continued to July 2020. A series of continuances then followed, many of which were related to the COVID-19 pandemic and the district court's inability to hold jury trials. Abligo's trial was eventually scheduled for March 8, 2021.
Prior to trial, the parties raised several evidentiary issues regarding the admissibility of certain video recordings, as well as the screenshots of text messages between A.A. and Abligo that had been provided to Magill. Abligo sought to admit three video recordings, each collected from the social media platform known as Snapchat, pursuant to Neb. Rev. Stat. § 27-412 (Reissue 2016). Each video was filmed by Abligo and depicted A.A. either posing for the camera or doing various activities while being recorded. Abligo sought to exclude the text messages on grounds of relevance, authentication, and hearsay.
At an evidentiary hearing, the State argued that the videos should be excluded, because Abligo failed to provide the requisite 15-day written notice of his intention to admit § 27-412 evidence, and that the videos were irrelevant, had no probative value, and would be unfairly prejudicial. Abligo responded that the videos were admissible under § 27-412 and relevant to the issue of A.A.'s consent and that if the videos did not depict sexual behavior within the scope of § 27-412, the videos were relevant to the issue of A.A 's credibility. As for the text messages, Abligo argued that the State would be unable to authenticate the messages and lay the required foundation for their admission.
The district court ruled that the Snapchat videos were inadmissible, because Abligo had not established good cause for noncompliance with the statutory 15-day notice provision of § 27-412 and, alternatively, the videos did not depict sexual behavior; they had little, if any, relevance to the issues; and their probative value was outweighed by the danger of unfair prejudice, confusion, or misleading of the jury. The district court ruled that the admissibility of the text messages would be addressed at trial in the context of the evidence.
On Friday, March 5, 2021, Abligo moved to continue the trial, scheduled to start March 8. Abligo alleged that the State had just revealed Bils planned to testify regarding statements Abligo had made to her on the morning of the alleged assault and that counsel needed additional time to consider the new information and prepare for trial. The State objected to a continuance, stating that Bils had been an endorsed witness since 2019 and that the State had repeatedly indicated that it intended to call Bils as a witness.
The district court declined to rule on Abligo's motion to continue and requested that a written motion and affidavit be submitted to the court. Abligo additionally moved the court to exclude Bils as a witness, citing the State's failure to disclose potentially exculpatory evidence to defense counsel in a timely manner. The State agreed to make Bils available for a deposition before the trial commenced, in lieu of excluding her as a witness. The parties conducted a deposition of Bils over the weekend, after which Abligo filed a written motion to continue with a supporting affidavit.
On the morning of trial, the court heard from both parties and overruled Abligo's motion to continue. The court reasoned that there was no prejudice to Abligo from the late disclosure of Bils' information because Bils would make a limited statement and because she was subjected to a deposition. The court then commenced a jury trial.
At trial, the State called A.A., Bils, Idrees, and Magill to testify. AA. testified that on March 5, 2019, she and Bils had gone over to the apartment, which Abligo and Capers shared, to "hang out" as a group. At that time, AA. was in a sexual relationship with Capers and Bils was in a sexual relationship with Abligo, but all four individuals were friends. AA. had only met Capers and Abligo 6 months prior to March 2019, but had known Bils for approximately 2 years and had previously worked with Bils as a cocktail waitress.
AA said that the four had spent the night playing games and drinking. According to A.A., all four...
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