State v. Khalaf
| Decision Date | 11 May 2021 |
| Docket Number | No. A-20-607.,A-20-607. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. ADRIS K. KHALAF, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge, on appeal thereto from the County Court for Lancaster County: MATTHEW L. ACTON, Judge. Judgment of District Court affirmed.
Sean M. Reagan and Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
Adris K. Khalaf appeals from his jury conviction of third degree sexual assault. Khalaf alleges that the district court erred in affirming his conviction and sentence and in failing to find plain error. He further alleges that his counsel on appeal to the district court was ineffective. Based on the reasons that follow, we affirm.
On September 3, 2019, the State filed an amended complaint alleging that on or about June 28, Khalaf committed three counts of third degree sexual assault against A.K. Count 1 alleged that Khalaf had made nonconsensual contact with A.K.'s breast; count 2 alleged nonconsensual contact with A.K.'s buttocks; and count 3 alleged nonconsensual contact between A.K. and Khalaf's penis.Third degree sexual assault is a Class I misdemeanor, punishable by up to 365 days in jail, a $1,000 fine, or both. Neb. Rev. Stat. § 28-106 (Reissue 2016).
Khalaf filed a pretrial motion in limine requesting that the county court prohibit the State from presenting evidence related to Khalaf's use of controlled substances. The court overruled the motion. A jury trial on the State's complaint was held on November 12 through 15, 2019.
At trial, A.K. testified that on June 28, 2019, she and her 14-year-old son, J.K., decided to explore a system of underground tunnels near Ballard Park in Lincoln, Nebraska. A.K. testified that she "felt leery" about going inside the tunnels, but she stated that J.K. is autistic and often becomes fixated on particular ideas, so she gave into his requests to explore the tunnels. Because of her concerns, A.K. and J.K. brought a baseball bat and a cane to the tunnels in case they ran into any "ornery teenagers." A.K. testified that because there was no light in the tunnels, she and J.K. used the flashlight application on their cell phones to see.
A.K. testified that after walking through the tunnel for a little while, she and J.K. met a man who was smoking a "white glass" pipe. She testified, over Khalaf's objection, that the substance the man was smoking did not smell like tobacco or marijuana and that she assumed it was methamphetamine. At trial, A.K. identified the man as Khalaf, and she testified that he began to walk with her and J.K. She testified that J.K. refused to return to the park when she told him they should leave the tunnels.
At some point, J.K. pulled away from the group, leaving A.K. and Khalaf behind. A.K. testified that Khalaf asked her for a "blow job," to which she responded, After this, Khalaf continued to walk with them, and A.K. further testified that Khalaf "slapped [her] butt" while J.K.'s back was turned. When Khalaf touched her buttocks, A.K. repeated "No, my son's here" and moved her body away from him. She testified that Khalaf then put his arm around her shoulders and "grabbed the outside of [her] breast" and "squeezed" through her clothes. A.K. testified that she "shrugged him off" and told Khalaf She testified that Khalaf did not react to her attempts to rebuff him and continued to walk through the tunnels with her and J.K. Throughout this time, Khalaf continued to smoke from the glass pipe.
A.K. testified that while she was in the tunnels, she tried to text her cousin about Khalaf "[b]ecause [she] felt unsafe." She stated that she was terrified, but that she kept quiet and continued walking because she did not want to endanger either herself or J.K. As they continued through the tunnels, Khalaf put his hand down the back of A.K.'s shorts to touch her buttocks, and he told A.K. that she "felt so good." A.K. again "wiggled him off" and reminded Khalaf that J.K. was present. Khalaf responded by saying "[y]ou feel so good, though." Khalaf then put his hand on A.K.'s breast again, this time "skin to skin."
A.K. further testified that Khalaf again put his hands down her shorts and that he "put his finger in [her] rectum, the tip of his finger." After A.K. tried to push Khalaf off, "he grabbed [A.K.'s] hips and put his penis between [her] butt cheeks." A.K. testified that at that point "she gave up" fighting against Khalaf because she did not want her son "to ever think or see this." A.K. and Khalaf stopped walking, and A.K. put her hands against the tunnel wall. She testified that eventually she "felt wetness down there," by which she meant "his cum," and she tried to get Khalaf to stop, which he eventually did. A.K. testified that while this was happening, J.K. had walked far ahead and rounded a corner in the tunnels.
After approximately 45 minutes spent in the tunnels, A.K. was able to turn back toward the entrance. Khalaf accompanied A.K. and J.K. back to the park, and A.K. testified that Khalaf continually attempted to touch her while they walked. She testified that J.K. wanted to take a photo with Khalaf, which A.K. agreed to in case she needed "evidence" later on. A.K. also gave Khalaf her phone number when he asked. The picture of A.K., J.K., and Khalaf was received into evidence. A.K. testified that she and J.K. then exited the tunnels and went home.
A.K. testified that she did not immediately call the police about the incident with Khalaf because she "was in shock," but she did go to the police station after 1 or 2 hours, "once [she] brought [her] head around what happened." While at the police station, Khalaf called A.K.'s phone. After leaving the police station, A.K. went to the hospital so that a sexual assault examination could be performed.
On cross-examination, A.K. admitted that Khalaf never made any threatening statements to her or to J.K. She denied smoking marijuana before going to the tunnels, but she admitted that she did not recall if she had smoked marijuana prior to going to the hospital.
A.K.'s son, J.K., testified, and his account was generally consistent with A.K.'s testimony. J.K. identified Khalaf as the man he had seen in the tunnels. J.K. testified that he stayed in front of the group while A.K. and Khalaf walked behind him. He testified that sometimes he would look behind, and Khalaf would instruct him to "look away." J.K. further testified that "most of the time" they were in the tunnels, A.K. and Khalaf were out of his sight. On cross-examination, J.K. testified that he had never seen Khalaf touch A.K. at any time except when they stood together to take a picture. He described Khalaf as "really nice" and stated that A.K. "seem[ed] fine." On cross-examination, J.K. testified that as they were walking through the tunnels, Khalaf walked in front of A.K.
In between witnesses, and outside the presence of the jury, the court conducted a Jackson v. Denno hearing, see Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), regarding statements Khalaf made to Officer Kelsey Anderson of the Lincoln Police Department. After hearing Anderson's testimony regarding a "controlled call" she had with Khalaf while pretending to be A.K., the county court ruled that Khalaf's statements from the controlled call were admissible. Further details regarding the Jackson v. Denno hearing are more fully set forth in the analysis section below.
The State called Anderson to testify at trial. Anderson interviewed A.K. at the police station when she made her initial report. Approximately 20 minutes after the interview began, A.K. received a phone call from Khalaf. Anderson testified that she had inadvertently failed to record the conversation between A.K. and Khalaf. She testified that she remembered Khalaf asking "Did I?" and "You did ask me not to touch?" in response to A.K.'s comments that he had hurt her.
Anderson testified that the day after A.K. made her initial report, she participated in a "controlled telephone call" to Khalaf. Anderson explained that a controlled call is when an "officer is recording a call to a suspect of an investigation" for the purpose of gaining "admissions about the incident from the suspect." Anderson testified that she used A.K.'s cell phone, which had been turned over to police, to call Khalaf. She testified that the call was recorded and that no one else was in the room with her when the call was placed. Anderson testified that a male voice, which she recognized to be Khalaf's, answered the call. She did not identify herself as a police officer to Khalaf.
The State offered a copy of the recorded call into evidence, and the county court received it over Khalaf's objection on hearsay grounds. The recording was played for the jury with a limiting instruction that the jury should only consider Anderson's statements as "contextual background" for Khalaf's statements. The court also received a written transcription of the controlled call, which was published to the jury for demonstrative purposes only.
During the controlled call, Anderson asked Khalaf questions such as "What about when you were behind me?" and "What did you do to hurt me?" in hopes of obtaining an admission from him. However, throughout the call, Khalaf did not acknowledge that he had hurt A.K., nor did he make any incriminating statements. The recorded call reflected that Khalaf made several requests to meet with A.K. in person.
The State then called Investigator Dustin Romshek to testify. Romshek testified that h...
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