State v. Morris, A-21-841

CourtCourt of Appeals of Nebraska
Writing for the CourtMOORE, JUDGE.
PartiesState of Nebraska, appellee, v. Jason E. Morris, appellant.
Docket NumberA-21-841
Decision Date13 September 2022

State of Nebraska, appellee,
v.

Jason E. Morris, appellant.

No. A-21-841

Court of Appeals of Nebraska

September 13, 2022


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 Douglas County: Shelley R. Stratman, Judge. Affirmed.

James Walter Crampton for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

Moore, Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE.

I. INTRODUCTION

Jason E. Morris appeals from his conviction in the district court for Douglas County, following a bench trial, for one count of first degree sexual assault. On appeal, he assigns error to the sufficiency of the evidence to sustain his conviction, and argues that the district court failed to rule on his motion to quash and failed to arraign him following the filing of a second amended information. He also argues that he received ineffective assistance of trial counsel in various regards. For the reasons contained herein, we affirm.

II. STATEMENT OF FACTS

1. Procedural Background

This case arises out of incidents occurring between Morris and the daughter of his former girlfriend, A.K. On November 22, 2019, the State filed a complaint in the county court for Douglas

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County, charging Morris with three counts of first degree sexual assault in violation of Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2016), a Class II felony. Specifically, the State alleged that Morris subjected A.K. to sexual penetration, without the consent of A.K., on three occasions occurring between May 1 and November 19, 2019.

Following a preliminary hearing on January 3, 2020, the case was bound over to district court for trial. On January 6, the State filed an information in district court charging Morris with counts identical to those in the county court complaint. The information also identified four witnesses for the State: A.K.; A.K.'s sister, T.K.; A.K.'s mother; and Ryan Kilawee. On January 21, the State filed a motion for leave to endorse additional witnesses, including Douglas Arrick, Lisa Crouch, Ashley Harris, Danielle Myers, and T.K.'s father. A hearing on the State's motion was scheduled for March 12, but no hearing was held on this date. Our record does not contain an order on the State's motion.

On January 27, 2020, Morris filed a motion to quash counts I and II of the State's information. Morris argued that because all three counts were plead "exactly the same," there was nothing that distinguished one count from the others. Morris' motion further requested an order directing the State to file a new information distinguishing counts I and II.

A pretrial conference was held on March 23, 2020. The State's oral motion to file an amended information was granted and the district court continued Morris' motion to quash and the pretrial conference. On April 7, the State filed an amended information charging Morris with three counts of first degree sexual assault. All three counts alleged that Morris had subjected A.K. to non-consensual sexual penetration, with count I alleging an assault occurred in her bedroom between August 1, 2018, and May 1, 2019; count II alleging an assault occurred in her mother's bedroom between August 1, 2018, and May 1, 2019; and count III alleging an assault occurred between May 2 and August 31. The court did not explicitly rule on Morris' motion to quash the initial information and Morris did not file a second motion to quash.

At a hearing on September 28, 2020, Morris' trial counsel informed the district court that Morris wished to waive his right to a jury trial and proceed with a bench trial. The court inquired whether Morris was formally waiving his right to a jury trial.

THE COURT: All right. So, Mr. Morris, you understand, sir that you have the right to have your case heard by a jury
MORRIS: I'm innocent
THE COURT: Okay. Now I'm asking if you understand that you have a right to have your case heard by a jury? You understand that?
MORRIS: Yeah. I just would like you to hear it.
THE COURT: Okay. But I need to make a record that you understand that that's a right that you have.
MORRIS: Yes, ma'am.
THE COURT: That you have the right to have a jury trial and the only person who can waive that right is you. You understand that?
MORRIS: Yes, ma'am.
THE COURT: And what do you want to do here today with regards to your jury trial?
MORRIS: Can I ask my sister?
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THE COURT: . . .
MORRIS: What should I do?
UNIDENTIFIED PERSON: You asking me?
MORRIS' TRIAL COUNSEL: You need to -- you can talk to her later.
MORRIS: Yes, I want to waive the jury trial and go along with the bench trial.
THE COURT: Okay. Has anybody made you threats to get you to waive this right?
MORRIS: I just want to get this over with, ma'am. I'm just tired of being in jail for something I didn't do.
THE COURT: I told understand that. We need to make a record. Nobody's threatened you to get you to waive this?
MORRIS: No.
THE COURT: Nobody's made any promises to get you to waive this right?
MORRIS: No, ma'am.
THE COURT: And you understand if you waive this right to a jury, it will be a bench trial and I will be both the finder of fact and the judge on the law that's to be applied.
MORRIS: Yes, ma'am.
THE COURT: So I'll ask you again, Mr. Morris: Are you freely, knowingly, voluntarily and intelligently waiving your right to a jury trial?
MORRIS: I freely voluntarily intelligently waiving my right to a jury trial.
THE COURT: All right. I will enter an order showing we [sic] waived his right to a jury trial. . . .

On March 22, 2021, the State filed a motion for leave to endorse additional witnesses, including Javeyonna Smith. In an order filed March 26, the district court granted the State's second motion to endorse.

2. Bench Trial

A bench trial was held before the district court from March 31 to April 2, 2021. At the start of the trial, the State requested leave to file a second amended information charging Morris with one count of first degree sexual assault. Specifically, the information alleged that Morris had subjected A.K. to non-consensual sexual penetration, between August 1, 2018, and August 1, 2019. Morris' trial counsel did not object to the State's motion and indicated that Morris was waiving a formal reading and advanced service of the second amended information. The bench trial proceeded without Morris entering a plea to the second amended information.

Both the State and Morris offered evidence during the bench trial.

(a) State's Evidence

A.K. testified that she was a junior in high school during the 2018-2019 school year. During that time, she lived in her mother's home with her younger sister, T.K., and various cousins. A.K. identified Morris as the former boyfriend of her mother. Morris was regularly at A.K.'s home and would occasionally spend the night. A.K. and Morris were often alone together, as A.K.'s mother worked a regular overnight shift at a gas station and T.K. would visit her father's home.

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A.K. testified that Morris frequently made her uncomfortable. A.K. described Morris staring at her while rubbing his hands and licking his lips. Morris would also call and text message A.K. and attempt to persuade her to come over to his home.

A.K. stated that Morris' behavior escalated, and on several occasions Morris entered her bedroom and penetrated her vagina with his penis and fingers. At times, Morris would physically restrain A.K. A.K. noted that one time Morris pushed her onto her bed with such force that the bed frame broke. Once, Morris also forced A.K. to touch his penis and to perform oral sex on him.

A.K. testified to a specific assault which occurred while her sister, T.K., was in the home. A.K. had just taken a shower and walked into her bedroom across the hall. After A.K. entered her bedroom, she turned around to see Morris behind her. Morris then asked A.K. if she had told her mother that Morris had previously sexually assaulted her, and he began to grab at A.K.'s arms and wrists. A.K. stated that Morris pushed her onto her bed, pinned her wrists above her head, and "forcefully" put his penis into her vagina while standing over her.

A.K. described T.K. pounding on her bedroom door and yelling for Morris to "get off" of A.K. A.K. struggled with Morris and kicked him with enough force that Morris fell to his knees. A.K. felt blood running down her legs. After Morris left her bedroom, A.K. took another shower and slept with T.K. in T.K.'s bedroom, because A.K. did not feel safe in her own room. A.K. was unable to provide the exact date this alleged sexual assault occurred.

Regarding this specific incident, T.K. testified that she heard A.K. screaming for help while A.K. and Morris were in A.K.'s bedroom. T.K. tried to unlock A.K.'s bedroom door while a cousin, who was also home at the time, tried to kick down the door. After Morris left the bedroom, T.K. found A.K. crying inside. The cousin was unavailable to testify at trial.

A.K. testified that she attempted to avoid Morris inside her mother's home. She locked herself in her bedroom and refused to eat with the family while Morris was in the home. A.K. also experienced bouts of depression following her sexual assaults. A.K. described missing weeks of school to stay in bed, losing her appetite, and engaging in self-harming behaviors.

Sometime during the 2018-2019 school year, A.K.'s friend, Javeyonna Smith, spent the weekend at A.K.'s house. Smith testified that Morris often came to A.K.'s room to check on them while wearing only his boxers. Smith noticed that A.K. became irritable whenever Morris was present and she observed Morris place A.K. in a chokehold during...

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