State v. Busby

• Decision Date: 27 September 2022
• Docket Number: A-21-904
• Parties: State of Nebraska, appellee, v. Allen A. Busby, appellant.
• Court: Nebraska Court of Appeals

State of Nebraska, appellee,
v.
Allen A. Busby, appellant.

No. A-21-904

Court of Appeals of Nebraska

September 27, 2022

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: Kevin R. McManaman, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and Timothy M. Eppler for appellant.

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

Moore, Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

I. INTRODUCTION

Allen A. Busby was convicted and sentenced on charges of first degree sexual assault and burglary. On appeal he argues that the district court for Lancaster County committed evidentiary errors and imposed excessive sentences. He also asserts that his trial counsel was ineffective. Having considered his arguments and reviewed the record, we affirm his convictions and sentences.

II. BACKGROUND

Busby and the victim, R.R., are the parents of a daughter born in 2018. Their romantic, but tumultuous, relationship ended during the pregnancy, but because R.R. believed it was important for the child to have a relationship with her father, R.R. remained in contact with Busby, providing

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him liberal parenting time. In May or June 2020, they all contracted COVID-19. At the time, Busby was living in Omaha but because of the need to quarantine, R.R. allowed Busby to stay with her and the child at her house in Lincoln. Following the 10 to 14 day quarantine period, Busby moved out of the house. At no time did he have a key to the residence.

On October 24, 2020, Busby and R.R. exchanged multiple texts to make arrangements for celebrating their daughter's birthday which was two days later. A disagreement arose between the two of them because they could not agree on the timing of their plans. R.R. left for her 7:30 p.m. to 2 a.m. shift at a gentlemen's club where she worked as a dancer. At approximately 10:30 p.m., R.R. received a text message from Busby that read "It's times like these that I regret having a child with you. I lied. I do hate you. I have so much negative energy towards you. I wanna come to your job and throw some piss on you. I've lost all respect for you." R.R. became concerned because Busby had threatened her in the past and "follows through sometimes, not all the time."

Shortly after R.R. received the text message, Busby appeared at R.R.'s place of employment. R.R. did not have any interaction with him, but his presence scared her. After R.R. finished performing on stage, she approached her manager and told her she was leaving early. Before leaving, R.R. told one of the other dancers what had happened and then left. According to R.R., this was approximately 11:30 p.m.

When R.R. arrived home, she explained to the babysitter what had happened at work and why she was home early. The babysitter was concerned about leaving R.R. alone so she stayed for approximately an hour. Before leaving, the babysitter locked all the doors and went outside to "make sure no cars were looming nearby." She described R.R. as "shaken, and distressed, and anxious, and fearful."

According to R.R., she, too, checked to make sure the doors were locked. She testified that she does not often use the back door to her house so she is unfamiliar with the locks; however, when she pulled on the door, she felt like it opened a little, so she "flipped the locks."

At 12:42 a.m., R.R. began receiving a series of text messages from Busby to which she did not respond. They began with a message that read "Why would you tell anybody what I say to you?" and culminated in one that read "Bet bitch I'm On my Way!" Busby also called her several times, but R.R. answered only the first telephone call, during which he was mad and called her names, so R.R. hung up on him.

R.R. testified that she was trying to convince herself that Busby was not really going to show up, so she lied down in her bed to try to sleep. Shortly thereafter, she heard Busby on the porch and she called the non-emergency number for the police. She explained that in the moment, she became confused and thought that dialing 911 was a request for an ambulance, and because she needed the police and not an ambulance, she searched on her telephone for the number for the Lincoln police department. R.R. was on the telephone with the dispatch center when Busby appeared inside her house. The recorded telephone call was offered and received into evidence.

Upon entering R.R.'s bedroom, Busby grabbed the telephone from her and threw her against the wall. After a struggle, he pulled her pants down and attempted to penetrate her with his penis. Unable to do so, he performed cunnilingus on her. According to R.R., Busby was vacillating between moments of rage and concern that the police were on their way. After a second failed attempt at intercourse, Busby walked out of her bedroom toward the front door. He then forced R.R. to perform fellatio on him. Afterwards, R.R. was able to escape out the front door. As she ran

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down the street with Busby chasing her, the police arrived. Busby changed directions and absconded.

The investigating officer photographed several injuries R.R. sustained in the struggle. R.R. declined medical treatment initially, but sought treatment the next day and was diagnosed with a concussion. She did not have a sexual assault nurse's examination performed. The investigating officer concluded that Busby had entered the house through the unlocked back door. Busby was subsequently located, arrested, and charged with first degree sexual assault and burglary.

Trial commenced on September 10, 2021. The day prior, the State filed a notice of intent to offer evidence of other crimes, wrongs, or acts of the defendant pursuant to Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404(2) (Supp. 2019). The State sought to offer a recording of a voicemail Busby left R.R. on September 4, 2020, in which he threatened to break into her house for the purpose of "terrorizing" her. The court held a hearing on September 10, 2021, at which the State argued that the evidence was inextricably intertwined with the events of October 24 and 25, 2020, because the proffered evidence is a "foreshadowing" of what actually occurred about 6 weeks later. It further argued that if the court considered the voicemail as a prior bad act, it was admissible as an exception to the prohibition against admissibility because it shows motive, opportunity, preparation, and planning. The recording of the voicemail was marked as exhibit 1.

Busby's attorney objected to exhibit 1 on the basis that it was "extremely prejudicial." He requested that if the court allowed it, that the message be edited to remove the "extremely foul language" which he considered to be "extremely prejudicial." In a written order, the court determined that exhibit 1 was inextricably intertwined with the events charged and was therefore not rule 404 evidence. And, even if it were, it was consistent with the exception for evidence showing motive, opportunity, intent, and plan. It concluded that it did not appear unfairly prejudicial within the meaning of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).

The State also advised the court that it received a copy of a letter that morning from R.R. that she had recently received. The letter was marked as exhibit 2 and contains correspondence to R.R. from Busby suggesting that if she failed to appear for trial he could not be convicted. It also contained a second piece of paper directed to the parties' daughter from Busby. The State sought a conditional ruling from the court on the admissibility of exhibit 2.

Busby's attorney objected to exhibit 2 on foundational grounds and because any probative value was "outweighed by the prejudice." The court did not provide a conditional ruling on exhibit 2; however, when the State offered it during R.R.'s testimony, the court accepted it over Busby's "prior objections."

The jury found Busby guilty of both charges. Following a presentence investigation (PSI), the court sentenced him to 20 to 30 years' imprisonment on the sexual assault conviction and 5 to 10 years' imprisonment on the burglary conviction. The sentences were ordered to be served concurrently. Busby appeals.

III. ASSIGNMENTS OF ERROR

Restated and renumbered, Busby assigns that the court erred in (1) admitting the September 4, 2020, voicemail (exhibit 1) into evidence; (2) admitting the letter R.R. received shortly before trial (exhibit 2) into evidence; and (3) imposing excessive sentences. He also assigns that (4) his trial counsel was ineffective in (a) selecting the jury, (b) failing to obtain a download of R.R.'s

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cellular phone contents, (c) failing to request a continuance to depose an untimely endorsed witness, (d) failing to specifically object or move to redact portions of exhibit 1, (e) failing to specifically object or move to redact portions of exhibit 2, (f) failing to object to non-responsive testimony by R.R. which raised prior bad act evidence, (g) failing to cross-examine R.R. about her communication to Busby while the case was pending, (h) failing to object during the State's closing argument, and (i) failing to argue important points in closing argument.

IV. STANDARD OF REVIEW

We review for abuse of discretion a trial court's evidentiary rulings on relevance, whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the sufficiency of a party's foundation for admitting evidence. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). We also review for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under rule 404(2), or under the inextricably intertwined...