State v. Richardson
| Decision Date | 17 January 2023 |
| Docket Number | A-22-420 |
| Parties | State of Nebraska, appellee, v. Jeffrey S. Richardson, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Ryan S. Post Judge, on appeal thereto from the County Court for Lancaster County: Matthew L. Acton, Judge. Judgment of District Court affirmed.
Mona L. Burton, of Anderson, Creager & Wittstruck, P.C. L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Teryn Blessin for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)
Following a bench trial held by the county court for Lancaster County, Jeffrey S. Richardson was convicted on one count of destruction of property. He appealed his conviction and sentence to the district court for Lancaster County, which affirmed the county court's judgment. Richardson now appeals to this court assigning various errors. After reviewing the record and arguments, we affirm.
Richardson and Ladonna Socha were in an on-again-off-again relationship for approximately 2 years. Sometime prior to March 2021, Richardson moved into Socha's home on Billings Drive (Billings House). Socha asserted that during the early morning hours of March 4, Richardson kicked in the door to her residence and poured steak sauce on her clothes and bedroom carpet. As a result, Richardson was charged with destruction of property in violation of the Lincoln Municipal Code. The complaint was later amended to include a count for failure to appear.
At trial, Socha testified that on March 3, 2021, she had sent a text message to Richardson asking him not to return to the Billings House that evening. Despite her request, she was awoken by Richardson "banging" on the door and ringing the doorbell. According to Socha, Richardson proceeded to break the side door, gaining access to the inside of the house. Thereafter, he chased her upstairs where they continued to argue. She told him he needed to leave because she was going to go get her former husband to come over and fix the door so it would close. She left Richardson at the house, and when she returned, she saw steak sauce had been poured over her clothes and bedroom carpet. Security video from the residence showing Richardson outside the various doors of the house and ascending the inside stairs was offered and received into evidence. Over the objection of Richardson, the court also received as exhibit 2, text messages between Richardson and Socha, and exhibit 3, photographs of Socha's door after it had been repaired.
Following Socha's testimony, the State rested. The court granted Richardson's motion to dismiss count 2, failure to appear, but overruled the motion as to count 1, destruction of property.
Richardson testified on his own behalf. According to him, the week before March 4, 2021, he had been staying at his mother's house, but the Billings House was his primary address. On March 3, Socha had called him and asked him to come over. After spending time together at the Billings House, Richardson eventually left to get food for him and Socha. Upon returning, he ate his food downstairs, then brought Socha's food up to her in their bedroom.
Around 10:30 that night, Socha's phone began continually ringing. Richardson pressed her to answer it, but she kept ignoring it, which he characterized as unusual for her. Eventually, Socha succumbed and answered her phone on the speaker setting. Richardson testified that Socha's former spouse, Larry Shippen, was the caller and had asked Socha what time she was coming home for dinner. An argument erupted between Richardson and Socha, which led to Socha telling Richardson to leave.
Richardson packed an overnight bag, but when he exited the house to put it in the car, Socha locked the door, leaving him outside in the cold, dressed in shorts. Because he still had more items to retrieve, he tried to enter the house through the various doors. Richardson explained that was the reason why he is seen on the security video attempting to gain access to the house. He denied, however, that he poured steak sauce on Socha's clothes. Rather, he explained that the steak sauce was on the bedroom floor because that is where Socha had eaten her dinner, and he assumed it got on her clothes when she removed them from the laundry and threw them on her floor.
Richardson also offered an explanation for the repaired door jamb depicted in exhibit 3. He testified that he had broken that door a week earlier, with Socha's permission, when he had accidentally locked himself out of the house.
At the conclusion of the evidence, the court ruled from the bench, finding Richardson guilty of destruction of property. A sentencing hearing was scheduled, but prior to it commencing, Richardson's counsel made a motion for recusal of the sentencing judge. Richardson contended that prior to the judge being appointed to the bench, he prosecuted a case against Richardson and as a result of that experience, he was biased against Richardson. Following an evidentiary hearing, the court denied the motion. Richardson was sentenced to 120 days' detention in the county jail.
Richardson appealed to the district court asserting insufficiency of the evidence, evidentiary errors, excessiveness of the sentence, and ineffectiveness of counsel. The district court affirmed his conviction and sentence. Richardson now appeals to this court. Additional facts pertinent to Richardson's assigned errors are presented in the analysis.
Richardson assigns restated and renumbered, that the district court erred in finding the county court did not abuse its discretion in (1) admitting exhibits 2 and 3 into evidence, (2) finding sufficient evidence to support a conviction, and (3) failing to recuse itself. Also, the district court erred by not finding (4) Richardson's sentence was excessive, (5) his counsel was ineffective for failing to motion for recusal of the county court judge after the bond hearing, and (6) his counsel was ineffective for failing to call Officer Estrada to testify.
Richardson assigns that the county court erred by overruling his foundational objections to exhibit 2, text messages between him and Socha, and exhibit 3, photographs of the repaired door. He argues that the text messages do not contain a date and the photographs do not depict the damage caused because they were taken after the door was repaired.
Exhibit 2 is a two-page exhibit containing photographs of Socha's phone. The first page is a series of messages sent by "Derek Livingston" to Socha. Both parties agreed that "Derek Livingston" was an alias that Richardson created to communicate with Socha to avoid implicating himself for violating a no-contact order issued in October 2020.
The time stamp on the first message is "WED 11:35 PM" and advises Socha "I'm there in 15 minutes." In the next message, time stamped 11:57 p.m., Richardson advised Socha that if she did not open the garage, he was going to "plow my car through the door" and she had "one minute to open it before I destroy your doors." Socha testified that exhibit 2 fairly and accurately depicted a portion of her communication with Richardson leading up to March 4, 2021.
When the State offered the text messages, Richardson objected. He argued the text messages lacked foundation because they did not contain a specific date as to when the messages were sent. The county court overruled Richardson's objection and received the text messages.
The State also offered exhibit 3, which consisted of photographs of several doors at the Billings House. The photographs of the side door show damage to the door frame, including a crack running the length of the door jamb. Socha testified that at the time the photos were taken, the frame had been altered so the door would close. Richardson objected on relevancy as to photographs other than the side and front doors that were allegedly damaged in the incident, and the court sustained that objection. He also raised a foundational objection to photographs of the side door because the pictures were taken after the door had been repaired. The court overruled that objection.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. Id.
Generally the foundation for the admissibility of text messages has two parts: (1) whether the text messages were accurately described and (2) who actually sent the text messages. State v. Henry, supra. Sufficient foundation is established for the identity of the message sender when testimony provides context or familiarity with the manner in which the purported sender communicated. Id. The possibility of misuse or alteration goes to weight of the evidence, not admissibility. Id.
Richardson admitted at trial that he had sent the text messages under the alias "Derek Livingston," which satisfies both parts to establish foundation under Henry. While Richardson disputes when the messages were sent, dates are not...
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