State v. Prior
| Decision Date | 12 April 2022 |
| Docket Number | A-20-888. |
| Parties | STATE of Nebraska, appellee, v. Stephen R. PRIOR, appellant. |
| Court | Nebraska Court of Appeals |
Thomas P. Strigenz, Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.
Stephen R. Prior appeals seven felony convictions and two misdemeanor convictions related to a home invasion robbery and sexual assault and the sentences imposed thereon. Specifically, he contends that the district court erred in finding he did not have an expectation of privacy in an abandoned bag found outside of an apartment complex, overruling his motion to suppress the victim's in-court voice identification of him, allowing the State to adduce evidence of Prior's physical characteristics, admitting witness testimony of prior bad acts, denying his request to secure attendance of out-of-state witnesses, denying his motion for directed verdict, and imposing excessive sentences. For the reasons set forth herein, we affirm.
At 9 p.m. on October 18, 2017, W.R., who lived alone, returned to her home from work. After parking her vehicle in her garage, W.R. retrieved her mail and placed her garbage can and recycling at the curb. After performing these routine activities, W.R. entered her home and closed her garage door. She then cooked dinner, took a shower, and went to sleep. The normality of the evening ended at approximately 11:30 p.m., when a stranger, who wore a black mask extending from his nose to his neck while brandishing a black semiautomatic handgun, woke W.R. by shining a light in her eyes. The perpetrator told W.R. that he "just want[ed her] money" and forced W.R. into the kitchen where her purse was located. When the perpetrator told W.R. to throw the money on the table, W.R. noticed that the perpetrator was wearing black gloves.
The perpetrator then forced the victim to an exercise room near the garage, where he told the victim to face the wall with her hands up. Although the perpetrator left, he returned shortly thereafter, telling the victim that "we're going to go upstairs, and I'm going to be here for a while." The perpetrator forced the victim upstairs to her bedroom and directed W.R. not to look at him. The perpetrator directed W.R. to "[p]ut her face in the pillow," after which he removed W.R.’s clothing and used rope to bind W.R.’s wrists and ankles. Although the perpetrator blindfolded the victim with her pillowcase, it was not tied tightly and W.R. was able to see around it.
After W.R. was blindfolded, the perpetrator removed his mask and gloves and proceeded to kiss, touch, and digitally penetrate W.R. without her consent. The perpetrator also forced W.R. to perform oral sex on him, after which he retrieved a condom and then vaginally penetrated W.R. without her consent. At some point throughout the encounter, the individual pulled out the knife in his front pocket and cut the ropes binding W.R.
Following the assault, the perpetrator forced W.R. to take a shower, telling her that "you're going to wash your mouth out with water at least two times" and that "you're going to stay in there at least five minutes, and then I'm going to be gone." After a few minutes, the perpetrator returned to the bathroom stating, "I'm still here." W.R. complied with the perpetrator's demands, staying in the shower for about 10 minutes until she could no longer hear him, after which she immediately dressed and drove to a friend's home. En route, W.R. called her friend and explained what had happened. During the call, W.R. expressed fear about reporting the assault due to the perpetrator's threats to kill her. However, W.R.’s friend reported the assault, and by the time W.R. arrived at her friend's home, paramedics and the police were present.
W.R. was able to provide law enforcement with specific details regarding the assault and the perpetrator because the blindfold had not been tied tightly and did not completely block W.R.’s vision during the assault. W.R., who at the time was a medical resident, described the perpetrator as a white male who had disheveled "grayish brown" hair; was approximately 50 to 60 years old; smelled of cigarette smoke; did not have pubic hair; was circumcised; had approximately a 1-centimeter horizontal scar on his abdomen, which W.R. believed to be a laparoscopic scar; had a tight and distended abdomen; and had what appeared to be another scar running down his chest and "around the left side of his belly button." W.R. provided the same identifying characteristics to a sketch artist in order to help identify her assailant.
W.R. also informed law enforcement that she had observed a knife in the right front pocket of the perpetrator's black jeans and that the rope used to bind her was white, about 1 centimeter in diameter, and made from an unknown soft material that she knew was not twine. The perpetrator wore a black T-shirt, a black sweatshirt, and a pair of glasses with either no frames around the bottom or very thin frames. W.R. stated that she assumed that the perpetrator obtained the condom from a dark-colored bag, about the size of a backpack, that he had placed near her bed.
W.R. reported that although the perpetrator wore a mask part of the time, she could hear and understand him clearly when he spoke. W.R. reported to law enfocement that the perpetrator asked her, "[I]s this the first you've heard [of] me?" and then said, She testified he also said that "if [she] ever told anybody that he would come and find [her] and kill [her]." W.R. told law enforcement that she felt terrified throughout the encounter and believed she was going to die.
While W.R. provided information to law enforcement, other officers went to the victim's home which showed no signs of forced entry. Officers noted that the bedding in one of the bedrooms was disheveled and that there was water alongside the shower door. Law enforcement collected evidence from W.R.’s home, including a "bunched up" condom that was found in bedroom linens where the assault occurred. The condom appeared to contain a "moisture," which officers could not identify without testing. Law enforcement also collected three strands of gray hair located on the bedroom floor and a half empty bottle of water. Law enforcement also located eight stains in the bedroom, none of which presumptively tested positive for semen. During this period of time, another officer serving as "stand by" noticed a suspicious white, "four-door sedan with LED lights" outside of W.R.’s residence. As the officer approached the vehicle, it sped out of the area. Attempts to locate the vehicle were unsuccessful.
During a canvass of W.R.’s neighborhood, law enforcement received information regarding a suspicious white vehicle that sped away from W.R.’s home on the day of the assault. A neighbor told officers that Prior had previously lived in the area. The neighbor stated that Prior drove a white Lexus sport utility vehicle with a damaged front quarter panel, that Prior would drive through the neighborhood at least two to three times per week, and that he had last seen Prior's vehicle at about 6 a.m. on October 18, 2017. The neighbor also provided law enforcement with two videos from his home surveillance camera: a video from October 17 at 6:15 a.m. and a second video from October 18 at 6:20 a.m. After determining that Prior was the registered owner of a white 2009 Lexus sport utility vehicle with Nebraska license plates, officers conducted an independent search into Prior and reviewed "field care interviews." One of those interviews led law enforcement to Jacquilyn B., who lived in W.R.’s neighborhood and had previously reported to law enforcement an interaction that she had had with Prior.
Based on W.R.’s description and Prior's resemblance to that description, officers presented W.R. with a photographic lineup containing six photographs, including one photograph of Prior. W.R. immediately eliminated three of the photographs, but was otherwise unable to affirmatively identify her assailant from the three remaining photographs. The three remaining photographs included the photograph of Prior. Following the photographic lineup, Prior was identified as a person of interest and law enforcement was instructed to be on the lookout for Prior and/or his white Lexus.
On October 19, 2017, a deputy located Prior's Lexus in the parking lot of an apartment complex that was a short distance from W.R.’s home. Upon approaching the unoccupied Lexus, the deputy observed various items inside the vehicle, including bolt cutters, a brown wallet, binoculars, duct tape, a pair of women's underwear, leather work gloves, a "messenger type bag," white rope, water jugs, and a sleeping bag. While a search warrant of Prior's Lexus was obtained, Sgt. Greg Monico, along with another officer, conducted surveillance of the vehicle. During their surveillance, they heard branches snapping in the tree line behind them. The pair exited their vehicle, identified themselves as law enforcement, and ordered the individual to exit the tree line. Although the individual fled instead of complying with the officers’ demands, the officers observed that the individual was wearing a "blue windbreaker style jacket," a head covering, dark-colored pants, and a knife sheath on his or her right side. After losing sight of the individual, officers called for backup, and during an approximately 10-minute time period, Prior's vehicle was not under surveillance. Despite having established a perimeter around the apartment complex, a "K-9" search of the area, and the search of a nearby creekbed, the individual was not located. After the search, the bottom of Monico's pants and his boots were soaked and...
To continue reading
Request your trial
-
State v. Prior
...30 Neb.App. 821 State of Nebraska, appellee, v. Stephen R. Prior, appellant. No. A-20-888Court of Appeals of NebraskaApril 12, 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. When reviewing a trial court's ruling on a motion to suppress based on a claimed v......