State v. Wiley

• Decision Date: 09 February 2021
• Docket Number: No. A-20-110.,A-20-110.
• Parties: STATE OF NEBRASKA, APPELLEE, v. CLAYTON M. WILEY, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. CLAYTON M. WILEY, APPELLANT.

No. A-20-110.

NEBRASKA COURT OF APPEALS

February 9, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Lancaster County: KEVIN R. MCMANAMAN, Judge. Affirmed.

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Clayton M. Wiley appeals his convictions of third degree domestic assault and negligent child abuse and the sentences imposed thereon. Wiley assigns thirteen errors to this court, which can be consolidated into the following broad issues: (1) the district court erred in holding an enhancement hearing after vacating the original sentence imposed by the court for third degree domestic assault with no evidence of a prior conviction, (2) the sentences imposed were excessive, and (3) trial counsel was ineffective. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

During the second week of April 2019, Samantha Jacobe, a 36-year-old single mother, met Wiley on a dating app. Jacobe and Wiley communicated primarily by texting or voice calls. On the evening of April 27, Wiley and Jacobe spent the evening visiting downtown bars in Lincoln, Nebraska. After leaving a bar at 2 a.m., Jacobe and Wiley went back to her apartment where they had consensual sexual intercourse. After this night, Wiley lived at Jacobe's home spending every night there with her and her three children, 11-year-old Aden E. and Jacobe's 6-year-old twins.

The following day, Sunday, April 28, 2019, Wiley, Jacobe, and Jacobe's children went to an entertainment center in Omaha. Jacobe testified that Wiley was "being distant" and would not tell her the reason for his mood. On the return drive to Lincoln, Jacobe and Wiley started arguing and Wiley threatened twice to "bust" or "punch" her face.

During the period of time that Wiley lived in Jacobe's home, the parties continued to engage in consensual intercourse. Wiley introduced Jacobe as "his girlfriend or girl" and Jacobe described their relationship as a "domestic partnership" and that she and Wiley were "dating."

Jacobe testified that, during the afternoon of May 5, 2019, Wiley texted Jacobe that he had lost between $500 and $600 and wanted her to "help him come up with [the money]." Jacobe refused stating that she did not "have that kind of money right now" which caused Wiley to become angry and state that he was coming to the house to "get his stuff." Jacobe described the events that transpired after Wiley arrived at her home:

We argued quite a bit back and forth. He had me kind of barricaded in the bathroom trying to talk to me. One minute he was . . . set to go and then the next [minute] he would just kind of flip, it was just like something triggered in him and he would try and convince me like let's not throw this away, let's talk about this. And this went on probably for about two, two and a half hours.

. . . .

So after about maybe two hours of fighting he swore he heard my son outside the bathroom window, listening to us, and I said that he's not there. So when we went out to the living room Aden was sitting on the front porch and he told Aden to go outside and play with his friends, to stop being nosy, and Aden kind of snapped back to him because [Wiley] and Aden have obviously had their run-ins and at that point [Wiley] took off running after [Aden] across the street, chasing him down. [Wiley] grabbed [Aden] by his arm, caught him and then [with] his hand around the back of his neck . . . [Wiley] brought [Aden] back across the street and kind of tossed him onto the couch.

And at that point I knew . . . it was bad and so I grabbed Aden and I put him in his room and I just said, "Stay here," and so at that point [Wiley and I] went down to my bedroom, it was in the basement, to pack his stuff like he insisted I always had to stay with him. If I tried to leave the room he would grab my arm and pull me back. One time he had me . . . pinned down to the bed, pinching. It left some bruises.

After he finally got the stuff we went back upstairs and he thought like maybe if we just try one more time, so he was like let's not throw this away, let's talk. And I said no, you need to go. There's nothing to talk about.

I went into the bathroom for something and he came in and he shut the door and he's like, "Well, I want the money that you stole from me." And I said I didn't take your money. I'm not paying it. And he said, "I'm gonna get my money one way or the other," and I tried to push him away to get out of the bathroom and his hand came up around mythroat and he shoved me back against the window [causing my head to "smack against the windowsill"].

And at that point I remember . . . his phone coming up against my face. He smacked my face with it and shattered his screen. The phone flew out of his hand and then he proceeded to punch me in the nose.

Jacobe testified that she was able to fight off Wiley, exit the bathroom, and get to the living room where she told Aden to call 911. Wiley came out of the bathroom, left the home, ran across the street, grabbed Aden by the neck and arm and drug him back into the house ripping Aden's shirt in the process. Jacobe testified that Aden screamed "You're hurting me" and that Aden was "scared," "angry," and "terrified." Aden corroborated Jacobe's testimony that Wiley grabbed the tank top he was wearing ripping it and that he felt "angry," "sad," and "scared." Jacobe stated that at that point, Wiley

threw a towel at me and told me to clean up, that the cops would be coming, and then he just became kind of arrogant about it. He said he'd cracked his phone and took mine and started calling his mom, family, somebody saying that, you know, the cops were coming, he was gonna be arrested and he said, "But that's okay if I'm arrested. She'll be gone, too." Instinct just set into me to survive [because] he had told me that if he went to jail that I could kiss my life good-bye, too, so I just said, "No. There's no cops. I'm not calling the cops. Let's just go. I'll take you to your house. Let's just get out of here," and I finally even just said . . . "Let's go get that money you think I took."

Jacobe stated that she and Wiley went to an ATM where she withdrew money to give to Wiley. After removing the money from the ATM, Wiley told Jacobe "I better not go to jail for this 'cause you'll pay." Jacobe did not call the police but she did tell her best friend what happened. Jacobe explained that she did not call the police because "[a]fter the incident happened with the threats, I just kind of went into survival mode, threatening my life, disappearing from my children, so I was scared and thought he would hold good to those threats and I just didn't." She further testified that she

went into survival mode. In the short time I knew [Wiley] I knew that he was doing good on what he said and your worst fear as a parent is to leave your kids without a parent. And I had to protect them and my best way was just to get him as far away from us as possible and leave it. I just went into survival mode. I didn't want anybody else to know what had happened.

The following Monday, May 6, 2019, police contacted Jacobe and, on May 6 and 7, officers photographed her May 5 injuries. The testimony and photographs establish that Jacobe suffered from a black eye, scratches on her neck and shoulder, and bruising on her face, neck, chest, and right arm. Jacobe testified that the photograph received into evidence as exhibit 4 showed bruising from Wiley's fingerprints from where he grabbed her around the neck. A photo of the shirt that Wiley ripped off of Aden was admitted into evidence as exhibit 10.

In October 2017, the State charged Wiley with third degree domestic assault with a prior conviction, a Class IIIA felony, and negligent child abuse, a Class I misdemeanor. See Neb. Rev.Stat. § 28-323(1) and (4) (Reissue 2016) (third degree domestic assault); Neb. Rev. Stat. § 28-707(1) and (3) (Reissue 2016) (child abuse). The State later amended the charges to change the date of the alleged offenses from May 4 to May 5, 2019.

Prior to trial, the State filed a motion in limine which asked the court to prohibit Wiley from eliciting testimony or introducing evidence during trial relating to any specific instances of violence allegedly committed by Jacobe; Jacobe's prior misdemeanor conviction for attempted unlawful acts or conveyance of an article to an inmate; and any instance in which Jacobe was alleged to have possessed or conveyed contraband inside a correctional institution. The State argued that such evidence was not proper character evidence nor was it permissible impeachment evidence. During the pretrial hearing, Wiley's attorney informed the court that he did not plan to introduce at trial any specific incidences of violence committed by Jacobe. The court granted the State's motion in limine but informed Wiley, "Now, understanding it is a motion in limine and if you want to make a record during the trial, you're certainly allowed to. We'll excuse the jury at a proper time if necessary."

The jury trial was held on January 7 and 8, 2020. During trial, evidence was admitted as previously set forth. The jury convicted Wiley of both third degree domestic assault and child abuse.

On the morning of February 6, 2020, the district court held the sentencing hearing. During the hearing, the court informed Wiley that it had considered his age, mentality, education, experience, social background, cultural background, and all the information contained in the presentence investigation report. The court then stated:

Your past criminal record, which those, you know I mentioned your age, only 31, but, you know, just starting -- lots of

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