State v. Cheairs, 042721 NECA, A-20-389
| Opinion Judge | BISHOP, Judge. |
| Party Name | State of Nebraska, appellee, v. Kevin M. Cheairs, appellant. |
| Attorney | Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. |
| Judge Panel | Riedmann, Bishop, and Welch, Judges. |
| Case Date | April 27, 2021 |
| Court | Nebraska Court of Appeals |
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 Sarpy County, George A. Thompson, Judge, on appeal thereto from the County Court for Sarpy County, PaTricia A. Freeman, Judge. Judgment of District Court affirmed.
Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
Riedmann, Bishop, and Welch, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
BISHOP, Judge.
I. INTRODUCTION
Kevin M. Cheairs appeals from an order of the Sarpy County District Court which affirmed his county court conviction and sentence for sexual assault in the third degree. Cheairs challenges the sufficiency of the evidence, the denial of his motion for new trial, and the conditions of probation imposed. He also claims he received ineffective assistance of appellate counsel on appeal to the district court. We affirm.
II.BACKGROUND
On July 13, 2018, the State filed a criminal complaint in the county court for Sarpy County charging Cheairs with one count of sexual assault in the third degree, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-320 (Reissue 2016). The charge stemmed from an incident that occurred between Cheairs and J.M. on June 26, during which J.M. alleged that Cheairs subjected her to sexual contact without her consent. The county court held a bench trial on March 13, 2019. The evidence offered by the parties included surveillance camera footage of fragments of the encounter between Cheairs and J.M., as well as testimony from J.M., Cheairs, and other witnesses.
J.M. testified at trial that she went to a Kwik Shop in Bellevue, Nebraska, "between 4:30 and five o'clock" in the morning. Cheairs confirmed that he was at the same Kwik Shop during this same timeframe. Two surveillance cameras captured the interaction between Cheairs and J.M. on June 26, 2018, and the two video files derived from this surveillance footage, labeled as "BaseName-06.avi" (Base 6) and "BaseName-07.avi" (Base 7), were offered into evidence as exhibit 6. The video files provided different angles of the interaction between Cheairs and J.M. We note that at several points in Base 6, the footage freezes for periods of time and does not show the actions of either Cheairs or J.M. during those periods. The camera angle in Base 7 does not show with clarity any movement or actions by the parties inside J.M.'s vehicle.
The surveillance footage shows J.M. initially pulling into a parking stall in front of the Kwik Shop, leaving her Ford Explorer, and entering the store. A few seconds after she entered the store, a white Crown Victoria drove behind her vehicle from the cameras' left and continued out of frame to the right. After leaving the cameras' line of sight, the Crown Victoria backed into view from the right, orienting itself to pull into the parking spot next to J.M.'s Explorer before veering into the next stall over to the right so that there was an empty stall between J.M.'s Explorer and the Crown Victoria. Afterwards, J.M. exited the store and the cameras show her attention being drawn to the right as she came out and reentered her vehicle. After J.M. sat in her Explorer and closed the driver's door, Cheairs appeared to walk toward the Kwik Shop's door only to stop and walk toward J.M. in her vehicle. Cheairs stood beside the Explorer's driver's side door and appeared to be talking with J.M. with his hands in his pockets while J.M.'s window was rolled down. After approximately 40 seconds, Cheairs turned around and began to walk toward his vehicle. He then turned around and headed back to J.M.'s Explorer.
After he returned to stand by the driver's door of the Explorer, Cheairs leaned on the open window frame of the driver's door with at least his left arm. Ten seconds later, Cheairs pulled his left arm from the window with a slight jolt and wiped his hand on his left pant leg. He resumed leaning on the open window frame with his left arm. Just over 30 seconds later, Cheairs turned and faced the store with his hands in his pockets while still close to the Explorer's driver's side door. Shortly thereafter, Cheairs walked back to his vehicle and then returned to his position next to the Explorer's driver's side door with a cigarette, which he lit and held in his left hand. He again leaned on the open window frame of the driver's door for a brief time before straightening up, appearing to continue talking to J.M. for approximately a minute and a half. The footage then shows Cheairs backing up slightly and making a hand motion in J.M.'s direction before he began to walk back to the Crown Victoria. Ten seconds later, J.M. pulled out from her parking spot and drove away. Approximately 30 seconds later, Cheairs did the same. Neither video file clearly depicts Cheairs making physical contact with J.M.'s person.
J.M. testified at trial that she was texting a friend of hers after she had reentered the Explorer. She stated that as she was doing so, Cheairs "walked up . . . to [her] truck [and] introduced himself." In response, she introduced herself and "asked him how he was doing," to which Cheairs replied that "he was fine." She further testified that Cheairs "walked away for a second to his car, came back, and he leaned on the door of the . . . truck." She recalled that Cheairs leaned on the driver's door with his arms folded and shortly after "reached in . . . and . . . grabbed [her] left breast and squeezed it" while commenting that she had "nice boobs." J.M. then said that she told Cheairs that "if he ever touched [her] again [she would] f'n kill him." She then recounted that "he walked away again" and "while he was walking away [she] fumbled for something in [her] truck" to defend herself with "if he touched [her] again." J.M. testified she was "nervous" and did not "know what to do" when he came back to her Explorer and stood beside the driver's door "for a couple more minutes" while smoking a cigarette. She said she was "frozen until he walk[ed] away," and she drove away just after.
Cheairs testified that he drove to the Kwik Shop to throw out trash that was in his vehicle. He said that he threw some of the trash out, "started to leave, realized [he] forgot all the rest of the trash[, ] and started to throw the rest of the trash away." He said that as he was throwing out this last bit of trash, J.M. walked out of the store and commented, "[T]hat's a nice car," referring to Cheairs' Crown Victoria. He recalled that after he approached her vehicle, they began to talk about the condition of I-80 and "the new 30 or 34 and 75 exchange in Plattsmouth." During their conversation, "she sparked up a cigarette" and Cheairs did the same after returning to his car to grab his cigarettes. He did not recall ever introducing himself to J.M., nor did he remember J.M. introducing herself to him. He further denied any alleged physical contact with J.M.'s person. He acknowledged leaning on her Explorer "with [his] right arm" and shoulder rather than with both arms as J.M. testified. He described that their conversation ended "amicably" and that he left shortly after J.M. drove away.
J.M. returned to the Kwik Shop in the afternoon the same day. She asked a store employee if he knew someone with Cheairs' description and said that she needed "to get the tag number on his car." She told an employee about the earlier encounter and that Cheairs had grabbed her breast, and she asked whether she could get footage from the store's surveillance cameras.
On June 29, 2018, J.M. reported the encounter with Cheairs to the Bellevue Police Department. Officer James Severn testified at trial that he was dispatched to investigate that report the same day. He recalled that after he took J.M.'s statement, he went to the Kwik Shop and spoke with the store's employees, but could not access the footage until the following day. Officer Severn testified that although the video did not show any physical contact between Cheairs and J.M., his observations of the footage corroborated J.M.'s earlier statements, and he began to make efforts to contact Cheairs. He told Cheairs over the phone that he needed Cheairs to come and speak with him, and Officer Severn recalled that Cheairs agreed to do so. However, Cheairs did not immediately show up, and after Officer Severn tried to call Cheairs again, Cheairs called the police department wanting "to know what [the case] was about." Officer Severn reported that after that phone call, he had gone to Cheairs' registered address, but could not make contact with Cheairs. He attempted to call Cheairs again while outside the registered address and received no answer. Immediately thereafter, he received a phone call notifying him of Cheairs' legal representation, and was told that he "would not be able to speak with [Cheairs]." Officer Severn wrote up a citation for Cheairs, and Cheairs came outside to receive it.
Following trial on March 13, 2019, the county court entered an order on March 21 finding Cheairs guilty of third degree sexual assault. On March 29, Cheairs' trial counsel filed a motion for new trial, asserting the county court's decision was contrary to the weight of the evidence and not proved beyond a reasonable doubt. After his trial counsel filed this motion, Cheairs retained new counsel who filed an amended motion for new trial on July 24. The amended motion alleged there were "newly discovered facts within the State's evidence," that "the findings of facts and conclusions...
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