Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/03/2016 10:06 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. ABEJIDE
Cite as 293 Neb. 687
State of Nebraska, appellee, v.
A bejide A bejide, also known as
Gaylord M ason, appellant.
___ N.W.2d ___
Filed June 3, 2016. No. S-15-180.
1. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion
reached by the lower court.
3. Convictions: Evidence: Appeal and Error. In reviewing a claim that
the evidence was insufficient to support a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
6. Lesser-Included Offenses. Whether a crime is a lesser-included offense
is determined by a statutory elements approach and is a question of law.
Under the statutory elements approach, for an offense to be a lesser-included offense, it must be impossible to commit the greater offense
without also committing the lesser offense.
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7. Lesser-Included Offenses: Sexual Assault. Attempted third degree
sexual assault is not a lesser-included offense of attempted first degree
sexual assault.
8. Criminal Law: Juries: Verdicts. Where a single offense may be committed in a number of different ways and there is evidence to support
each of the ways, the jury need only be unanimous in its conclusion that
the defendant violated the law by committing the act. It need not be
unanimous in its conclusion as to which of several consistent theories it
believes resulted in the violation.
9. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
10. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
11. Habitual Criminals: Sentences: Convictions. By its terms, Neb. Rev.
Stat. § 29-2221 (Reissue 2008) requires the triggering offense to be “a
felony” before the habitual criminal statute will apply to the sentencing
of the triggering offense. But in order to be one of the prior convictions
that establishes habitual criminal status, § 29-2221 does not require that
the prior conviction was a “felony” per se; instead, it requires that the
prior conviction resulted in a sentence of imprisonment for a term “of
not less than one year.”
12. Sentences. In imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and experience, (4)
social and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the
commission of the crime.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Kristi J. Egger Brown for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
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STATE v. ABEJIDE
Cite as 293 Neb. 687
Miller-Lerman, J.
I. NATURE OF CASE
Abejide Abejide, also known as Gaylord Mason, was convicted by a jury of attempted first degree sexual assault and
terroristic threats. The district court for Lancaster County
found Abejide to be a habitual criminal and sentenced him
to imprisonment for 10 to 20 years for attempted first degree
sexual assault and for 10 to 10 years for terroristic threats.
Abejide appeals his convictions and sentences. His assignments
of error challenge the court’s refusal to give certain proposed
instructions, the sufficiency of the evidence, the effectiveness
of trial counsel, and the alleged excessiveness of his sentence.
We affirm Abejide’s convictions and sentences.
II. STATEMENT OF FACTS
Abejide was arrested and charged with attempted first
degree sexual assault and terroristic threats in connection with
an incident that occurred on May 24, 2014. At Abejide’s jury
trial, the victim testified that she was walking to a grocery
store when a man she knew called out to her. The man was
Howard Mason, who is Abejide’s brother. The victim crossed
the street to talk with Mason, who was on the sidewalk drinking beer with a few other people, including Abejide. She
talked and drank beer with the group for a while. At some
point, Mason and Abejide got into an argument and Mason
left. Later, as the victim was leaving, Abejide pulled her
into an alley, where he started choking her and told her he
was going to “knock [her] out.” The victim testified that she
thought that Abejide was going to kill her. She further testified
that she thought that Abejide was trying to rape her, because
he pushed her against a wall and pulled her pants down and
took his own pants down. She testified that Abejide told her
that he was going to do something which she understood to
mean that he was going to sexually assault her. The victim
started screaming and told him to stop. The next thing she
remembered was that a police officer arrived and handcuffed
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Abejide. The victim testified that she had never met Abejide
before that day and that she did not consent to having sexual
intercourse with him in the alley.
A Lincoln police officer testified that he received a call to
respond to a report of a possible domestic disturbance in an
alley. He parked his patrol car nearby and walked to the alley.
When he turned a corner, he saw Abejide holding a woman
face first against the wall. The woman’s pants were pulled
down and Abejide’s penis was exposed. The officer testified
that the woman appeared “shaken,” “upset,” and “fearful” and
that when she saw him, she said, more than once, “‘Help me.
He’s trying to rape me.’” The officer pulled Abejide away
from the woman and put him into handcuffs. The officer and
another officer who later arrived at the scene of the incident
both testified that Abejide appeared to be intoxicated but that
he was able to comply with instructions and could walk on
his own.
After the State rested its case, the court overruled Abejide’s
motion to dismiss the terroristic threats charge. Abejide did
not move to dismiss the attempted first degree sexual assault
charge, and he did not thereafter present any evidence in
his defense.
At the jury instruction conference, the court refused a number of Abejide’s proposed instructions, three of which are
at issue in this appeal. The first proposed instruction was
an instruction which included attempted third degree sexual
assault as a lesser-included offense of attempted first degree
sexual assault. The court instead gave an instruction which
set forth no lesser-included offense to attempted first degree
sexual assault.
The second proposed instruction at issue in this appeal was
an instruction setting forth the elements of the offense of terroristic threats. Abejide’s proposed instruction required the
jury to reach unanimous agreement regarding whether Abejide
acted with the intent to terrorize the victim or whether he
acted in reckless disregard of the risk of causing terror to the
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victim. The court instead instructed the jury that it “need not
agree unanimously on whether . . . Abejide intended to terrorize [the victim] or acted in reckless disregard of terrorizing
[the victim],” so long as the jury agreed unanimously that the
State established either state of mind of the defendant beyond
a reasonable doubt.
The third and final proposed instruction at issue in this
appeal was an instruction setting forth an intoxication defense
and instructing the jury that it could consider evidence of
Abejide’s intoxication in deciding whether he had the required
intent or whether he was so overcome by the use of alcohol
that he could not have formed the required intent. In refusing
Abejide’s proposed instruction, the court cited
Neb. Rev. Stat.
§ 29-122 (Cum. Supp. 2014), which generally provides that
voluntary intoxication is not a defense to any criminal offense
and may not be considered in determining the existence of a
mental state of the defendant where mental state is an element
of the offense. The court noted that to the extent there was
evidence that Abejide was intoxicated, there was no evidence
that his intoxication was not voluntary. The court therefore
instructed the jury that it could not consider Abejide’s voluntary intoxication in deciding whether he had the required
intent. Abejide objected to the court’s instruction on the basis
that it unconstitutionally diminished the State’s burden to
prove each and every element of the offense and that § 29-122
improperly imposed a burden on Abejide to present evidence which might require him to give up other constitutional
rights, such as the right to remain silent. The court overruled
Abejide’s objection.
The jury found Abejide guilty of both attempted first degree
sexual assault and terroristic threats. After the court entered
judgment based on the jury’s verdicts, the court held a hearing to consider the State’s charge that Abejide was a habitual
criminal. Based on evidence presented by the State, the court
found that Abejide had three prior convictions, each of which
involved a sentence of not less than 1 year: a conviction in
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STATE v. ABEJIDE
Cite as 293 Neb. 687
1994 for attempted first degree sexual assault of a child, for
which he was sentenced to imprisonment for 6 to 9 years;
a conviction in 2007 for a violation of the Sex Offender
Registration Act (SORA), second offense, for which he was
sentenced to imprisonment for 2 to 4 years; and a conviction in 2011 for a violation of the SORA, for which he was
sentenced to imprisonment for 20 months to 4 years. The
court further found that Abejide was represented by counsel
in each prior conviction. The court found that Abejide was a
habitual criminal. The court thereafter sentenced Abejide to
imprisonment for 10 to 20 years for attempted first degree
sexual assault and for 10 to 10 years for terroristic threats;
the court ordered the sentences to be served consecutively to
one another.
Abejide appeals his convictions and sentences.
III. ASSIGNMENTS OF ERROR
Abejide claims that the district court erred when it rejected
his proposed jury instructions regarding attempted third degree
sexual assault as a lesser-included offense of attempted first
degree sexual assault, the elements of terroristic threats and the
requirement of unanimity with regard to the defendant’s state
of mind, and the intoxication defense. He also claims that there
was not sufficient evidence to support the verdicts and that he
was denied effective assistance of counsel in certain respects.
Abejide finally claims that the court imposed an excessive sentence. In connection with the claim of an excessive sentence,
Abejide argues that his prior convictions for violations of the
SORA should not have been used to support a finding that he
was a habitual criminal.
IV. STANDARDS OF REVIEW
[1,2] Whether the jury instructions given by a trial court are
correct is a question of law. State v. Armagost, 291 Neb. 117,
864 N.W.2d 417 (2015). When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion reached by the lower court.
Id.
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STATE v. ABEJIDE
Cite as 293 Neb. 687
[3] In reviewing a claim that the evidence was insufficient
to support a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact, and a conviction will be affirmed, in the absence
of prejudicial error, if the evidence admitted at trial, viewed
and construed most favorably to the State, is sufficient to support the conviction. State v. Custer,
292 Neb. 88,
871 N.W.2d
243 (2015).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Russell,
292 Neb. 501,
874 N.W.2d
8 (2016).
V. ANALYSIS
1. The District Court Did Not Err
in Its Rulings R egarding
Jury Instructions
[5] Abejide claims that the district court erred when it
rejected his proposed jury instructions on the offense of
attempted first degree sexual assault, the offense of terroristic
threats, and the defense of intoxication. To establish reversible
error from a court’s refusal to give a requested instruction, an
appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction. Armagost, supra. We conclude that the district court did
not commit reversible error when it refused each of the proposed instructions.
(a) Attempted First Degree
Sexual Assault Instruction
Abejide proposed an elements instruction which included
attempted third degree sexual assault as a lesser-included
offense of attempted first degree sexual assault. The court
refused Abejide’s proposed instruction and instead gave an
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STATE v. ABEJIDE
Cite as 293 Neb. 687
instruction which set forth no lesser-included offense. Abejide
contends that the jury should have been instructed on attempted
third degree sexual assault as a lesser-included offense. We
reject Abejide’s contention.
[6] We addressed this issue in State v. Kibbee,
284 Neb.
72,
815 N.W.2d 872 (2012), wherein the defendant claimed
that the trial court erred when it refused to instruct the jury
on third degree sexual assault as a lesser-included offense of
first degree sexual assault. We noted in Kibbee that whether a
crime is a lesser-included offense is determined by a statutory
elements approach and is a question of law. Under the statutory elements approach, for an offense to be a lesser-included
offense, it must be impossible to commit the greater offense
without also committing the lesser offense. With respect to
whether third degree sexual assault is a lesser-included offense
of first degree sexual assault, we adopted the reasoning of
the Nebraska Court of Appeals in State v. Schmidt,
5 Neb.
App. 653,
562 N.W.2d 859 (1997), and rejected the defend
ant’s contention.
[7] In Schmidt, the Court of Appeals concluded that
attempted third degree sexual assault is not a lesser-included
offense of attempted first degree sexual assault. The Court of
Appeals reasoned that, given the statutory definitions applicable to sexual assault crimes, it is possible to have “sexual
penetration,” an element of first degree sexual assault, without
having “sexual contact,” an element of third degree sexual
assault, and that therefore, the crime of first degree sexual
assault can be committed without at the same time committing
third degree sexual assault. Schmidt,
5 Neb. App. at 675,
562
N.W.2d at 875-76. We concluded in Kibbee, supra, that third
degree sexual assault is not a lesser-included offense of first
degree sexual assault.
The holdings in Kibbee and Schmidt apply here. Abejide
acknowledges the precedent of Kibbee and Schmidt but argues
that those decisions were erroneous and urges us to revisit the
issue. We find no error in the reasoning in Kibbee and Schmidt.
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Abejide’s tendered instruction, which included attempted third
degree sexual assault as a lesser-included offense of attempted
first degree sexual assault, was not a correct statement of the
law, and therefore, the district court did not commit reversible
error when it refused the instruction.
(b) Terroristic Threats Instruction
Abejide proposed an instruction setting forth the elements
of terroristic threats and instructing the jury that it had to reach
a unanimous decision regarding intent. He proposed instructing the jury that it could find him guilty of either “intentional
terroristic threats” or “reckless terroristic threats” but that it
must unanimously agree on whether he acted “with the intent
to terrorize” or whether he acted “in reckless disregard of the
risk of causing such terror.” The court refused Abejide’s proposed instruction. Instead, the court instructed the jury that it
could find Abejide guilty of terroristic threats if it found that
he acted either with intent to terrorize or in reckless disregard
of terrorizing the victim but that “you need not agree unanimously on whether . . . Abejide intended to terrorize [the victim] or acted in reckless disregard of terrorizing [the victim],
so long as you agree unanimously that the state has established
either of the elements . . . beyond a reasonable doubt.” We
find no error in the court’s refusal to instruct as requested
by Abejide.
[8] We have stated that where a single offense may be committed in a number of different ways and there is evidence to
support each of the ways, the jury need only be unanimous
in its conclusion that the defendant violated the law by committing the act. State v. Galindo, 278 Neb. 599,
774 N.W.2d
190 (2009). It need not be unanimous in its conclusion as
to which of several consistent theories it believes resulted
in the violation.
Id. As an example, we have applied these
standards in cases involving a charge of first degree murder
which may be committed under either a felony murder theory
or a premeditated murder theory. In such cases, we have
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held that a jury need not be unanimous as to the theory upon
which it relies to convict a defendant, as long as each juror is
convinced beyond a reasonable doubt that the defendant committed the crime. E.g., State v. Mata,
275 Neb. 1,
745 N.W.2d
229 (2008) (citing State v. White,
254 Neb. 566,
577 N.W.2d
741 (1998)).
By similar reasoning, we have concluded that for a defend
ant to be convicted of driving under the influence, the jury
is not required to be unanimous on whether the defendant is
guilty of the offense because he was driving “while impaired
by alcohol” or because he was driving while his blood alcohol concentration was over the statutory legal limit. State v.
Parker,
221 Neb. 570, 573,
379 N.W.2d 259, 261 (1986).
See, also, State v. Casillas,
279 Neb. 820, 840,
782 N.W.2d
882, 899 (2010) (stating that “a driving-under-the-influence
offense can generally be shown either by evidence of physical
impairment and well-known indicia of intoxication or simply
by excessive alcohol content shown through a chemical test
and that the jury need not be unanimous in its determination
of under which means the offense was committed”). In this
regard, in
Parker, supra, we held that “the defendant is not
entitled to an instruction that in order for the defendant to be
found guilty, the jury must be unanimous with regard to any
one theory or the jury must find the defendant not guilty.”
221
Neb. at 573,
379 N.W.2d at 261.
Citing to
Parker, supra, the Court of Appeals has determined with respect to terroristic threats that there is generally
no requirement that the jury unanimously agree whether the
crime was intentional or reckless. State v. Rye,
14 Neb. App.
133,
705 N.W.2d 236 (2005). However, in Rye, the Court of
Appeals noted that where an additional charge such as use of a
weapon to commit a felony requires that the predicate offense
be an intentional crime, then in that case, the jury must unanimously agree that the predicate offense of terroristic threats
was intentional in order to convict the defendant of the additional charge.
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As relevant to this case,
Neb. Rev. Stat. § 28-311.01(1)
(Reissue 2008), regarding the crime of terroristic threats, provides: “A person commits terroristic threats if he or she threatens to commit any crime of violence: (a) With the intent to
terrorize another; . . . or (c) In reckless disregard of the risk of
causing such terror . . . .” Thus, the statute defines terroristic
threats as a single offense which may be committed different
ways. A juror in this case could find, consistent with the evidence, that Abejide threatened to commit a crime of violence
and that he did so either with the intent to terrorize the victim
or in reckless disregard of causing such terror. Given the statute and our application thereof, the jury was not required to be
unanimous as to which state of mind Abejide possessed.
Abejide’s proposed instruction requiring such unanimity
was not a correct statement of law. We therefore reject his
claim that the district court erred when it refused his proposed
instruction.
(c) Intoxication Defense Instruction
Abejide proposed an instruction setting forth an intoxication
defense. The proposed instruction stated that the jury could
“consider evidence of alcohol use along with all the other evidence in deciding whether . . . Abejide had the required intent”
but that it could “not consider intoxication if . . . Abejide
voluntarily became intoxicated so that he could commit the
crime or crimes charged in the information.” The court refused
this proposed instruction, and based on the evidence and the
controlling statute, § 29-122, the court instructed the jury that
it could not consider Abejide’s voluntary intoxication in deciding whether he had the required intent.
In its ruling refusing Abejide’s proposed intoxication defense
instruction, the court cited § 29-122, regarding intoxication as
a defense. Section 29-122 provides as follows:
A person who is intoxicated is criminally responsible
for his or her conduct. Intoxication is not a defense
to any criminal offense and shall not be taken into
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consideration in determining the existence of a mental
state that is an element of the criminal offense unless
the defendant proves, by clear and convincing evidence,
that he or she did not (1) know that it was an intoxicating substance when he or she ingested, inhaled, injected,
or absorbed the substance causing the intoxication or
(2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.
In connection with its ruling refusing Abejide’s proposed
intoxication defense instruction, the court noted that there was
no evidence that Abejide did not know that he had ingested an
intoxicating substance or that he had not voluntarily ingested
it. Abejide’s proposed instruction did not correctly state the law
under § 29-122, and the evidence did not warrant an instruction
setting forth an instruction regarding involuntary intoxication.
See § 29-122. Abejide therefore has not shown that the district
court’s refusal to give his proposed instruction was reversible error.
Abejide acknowledges that pursuant to § 29-122, “intoxication can only be used as a defense if a defendant did not know
they [sic] were ingesting an intoxicating substance, or did not
ingest the intoxicating substance voluntarily.” Brief for apellant
at 28. Apparently acknowledging that there was no evidence in
this case that Abejide did not know that he had ingested an
intoxicating substance or that he had not voluntarily ingested
it, Abejide contends that it was unconstitutional to put the
burden on the defendant to provide such evidence and that
when there is evidence that the defendant was intoxicated, the
burden should be on the State to prove that the defendant knew
he or she was ingesting an intoxicating substance and that the
defendant did so voluntarily.
We note two significant features of § 29-122. First, the
statute provides that “[a] person who is intoxicated is criminally responsible for his or her conduct” and that, generally, “[i]ntoxication is not a defense to any criminal offense
and shall not be taken into consideration in determining the
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existence of a mental state that is an element of the criminal
offense . . . .” However, the statute provides an exception to
this general rule when “the defendant proves, by clear and convincing evidence, that he or she did not (1) know that it was
an intoxicating substance when he or she ingested, inhaled,
injected, or absorbed the substance causing the intoxication or
(2) ingest, inhale, inject, or absorb the intoxicating substance
voluntarily.” Section 29-122 is generally understood to make
a distinction between voluntary intoxication, which may not
either provide a defense or be considered in determining the
existence of a mental state, and involuntary intoxication, which
may be so used.
With regard to whether the statute may constitutionally
provide that voluntary intoxication is not a defense and may
not be considered when determining the existence of a mental
state, we note that in Montana v. Egelhoff,
518 U.S. 37,
116 S.
Ct. 2013,
135 L. Ed. 2d 361 (1996), the U.S. Supreme Court
rejected a due process challenge to a Montana statute with
provisions similar to § 29-122. The Montana statute provided
in part that voluntary intoxication “‘may not be taken into consideration in determining the existence of a mental state which
is an element of [a criminal] offense.’” Egelhoff,
518 U.S. at
39-40. Two pluralities of four justices in Egelhoff disagreed on
whether the statute violated due process when characterized as
an evidentiary rule designed to prevent the defendant from presenting evidence of voluntary intoxication in his or her defense.
However, Justice Ginsburg wrote a concurrence in which she
characterized the statute as a “legislative judgment regarding
the circumstances under which individuals may be held criminally responsible for their actions.”
518 U.S. at 57 (Ginsburg,
J., concurring in judgment). As such, Justice Ginsburg reasoned, the statute removed the subject of voluntary intoxication from the mens rea inquiry, “thereby rendering evidence of
voluntary intoxication logically irrelevant to proof of the requisite mental state.”
518 U.S. at 58. Because “[s]tates enjoy wide
latitude in defining the elements of criminal offenses,” Justice
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Ginsburg concluded that the statute, read as a law “[d]efining mens rea to eliminate the exculpatory value of voluntary
intoxication,” did not offend due process.
518 U.S. at 58-59.
The plurality which found no due process violation when the
statute was viewed as an evidentiary rule stated that it was “in
complete agreement” with Justice Ginsburg’s characterization
of the statute and that it had analyzed the statute as an evidentiary rule “simply because that [was] how the [court below]
chose to analyze it.”
518 U.S. at 50 n.4.
We believe that, similar to the statute at issue in
Egelhoff,
supra, § 29-122 is a “legislative judgment regarding the circumstances under which individuals may be held criminally
responsible for their actions.” See Egelhoff,
518 U.S. at 57
(Ginsburg, J., concurring in judgment). Although the statute
redefined the circumstances under which the requisite state of
mind may be found, the statute did not relieve the State of the
burden of proving a state of mind that is a required element of
a criminal offense. See
Egelhoff, supra (Scalia, J., for plurality) (burden was not shifted under statute and court instructed
jury that State had burden of proving guilt beyond reasonable
doubt). By removing voluntary intoxication from consideration of whether the defendant had the required mental state,
§ 29-122 redefines the circumstances under which the requisite
mental state may be found but it does not relieve the State of
its burden to prove the requisite mental state.
Abejide does not contend that the Legislature could not
provide that voluntary intoxication is not a defense and cannot be considered in determining the existence of a mental
state that is an element of a crime. Instead, he focuses on the
second feature of the statute which allows the use of involuntary intoxication for such purposes, but only if the defendant
“proves, by clear and convincing evidence” that intoxication
was involuntary as set forth in the statute. Abejide argues that
it violates due process to put the burden on the defendant to
prove that intoxication was involuntary. He cites Sandstrom
v. Montana,
442 U.S. 510,
99 S. Ct. 2450,
61 L. Ed. 2d 39
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(1979), in which the U.S. Supreme Court held that a conclusive presumption or a presumption that shifts to the defendant
the burden of persuasion with respect to an element of a crime
deprives the defendant of due process because it relieves the
State of its duty to prove every element beyond a reasonable doubt.
In response to Abejide’s due process argument, the State
cites Patterson v. New York,
432 U.S. 197,
97 S. Ct. 2319,
53
L. Ed. 2d 281 (1977), for the proposition that it is not unconstitutional to put the burden on the defendant to prove an
affirmative defense. The Court in Patterson stated that “[p]roof
of the nonexistence of all affirmative defenses has never been
constitutionally required” and that it is “constitutionally permissible to provide that various affirmative defenses [are] to be
proved by the defendant.”
432 U.S. at 210-11. See, also, Smith
v. United States, ___ U.S. ___,
133 S. Ct. 714,
184 L. Ed. 2d
570 (2013). However, the Court was careful in Patterson to
distinguish between an affirmative defense that “constitutes a
separate issue on which the defendant is required to carry the
burden of persuasion” and a defense that “serve[s] to negative
any facts of the crime which the State is to prove in order to
convict.”
432 U.S. at 207. Patterson makes an important distinction between a defense that merely negates an element of
the crime and a defense that constitutes an issue separate from
the elements of the crime.
Therefore, whether § 29-122 violates due process by placing on the defendant the burden to prove by clear and
convincing evidence that the defendant was involuntarily
intoxicated may depend in part on whether involuntary intoxication is a defense that presents an issue separate from the
elements of the crime or whether it is a defense that merely
negates the mental state that is an element of the crime. In
this regard, we discuss below the types of burdens of proof,
the constitutional implications of those burdens, and the facts
of this case relative thereto. And we determine that it does
not violate due process to put the burden on the defendant to
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produce at least some evidence that intoxication was involuntary and that, here, where there was no evidence presented by
either Abejide or the State to indicate that Abejide’s intoxication was involuntary, the court did not unconstitutionally
refuse Abejide’s proposed instruction regarding involuntary
intoxication.
While § 29-122 puts the burden on the defendant to prove
involuntary intoxication by clear and convincing evidence,
the burden of proof is generally understood to include two
separate burdens—the burden of production and the burden of
persuasion. See State v. Ryan,
249 Neb. 218,
543 N.W.2d 128
(1996) (Gerrard, J., dissenting), overruled on other grounds,
State v. Burlison,
255 Neb. 190,
583 N.W.2d 31 (1998). In
Ryan, the dissent recognized that “[t]here is a clear constitutional distinction between casting the burden of production
on an accused and casting the burden of persuasion on an
accused” and that “it is the burden of persuasion that the state
is required to bear beyond a reasonable doubt . . . not the
burden of production.”
249 Neb. at 251,
543 N.W.2d at 150
(emphases in original). See, also,
Patterson, supra (referring
to allocation of burden of persuasion). With regard to putting
on the defendant the burden of production with regard to a
defense, it has been stated:
As to the burden of production of evidence, it is
uniformly held that the defendant is obliged to start
matters off by putting in some evidence in support of
his defense—e.g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative
defenses—unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a
defense, in which case the matter of defense is properly
an issue though the defendant himself produces nothing further to support it. Experience shows that most
people who commit crimes are sane and conscious; they
are not compelled to commit them; and they are not so
intoxicated that they cannot entertain the states of mind
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which their crimes may require. Thus it makes good
sense to say that if any of these unusual features are to
be injected into the case, the defendant is the one to do
it; it would not be sensible to make the prosecution in all
cases prove the defendant’s sanity, sobriety and freedom
from compulsion.
1 Wayne R. LaFave, Substantive Criminal Law § 1.8(c) at
82-83 (2d ed. 2003). Other commentators have noted that even
when a defense serves to negate an element of the crime, “[t]he
defendant may have to bear a burden of production if he seeks
to inject a particular theory for or seeks an instruction suggesting a particular theory for the absence of the required element
. . . .” 1 Paul H. Robinson, Criminal Law Defenses § 4(a)(2)
at 23 (1984).
With regard to the issue whether intoxication was involuntary under § 29-122, it is an “unusual feature” that intoxication
is involuntary as set forth in the statute. Therefore, regardless
of whether involuntary intoxication is a defense that negates
the mental state required to commit a crime or whether it is
a separate issue, it is the sort of issue that, if the defendant
wishes to inject the issue into the case, does not violate due
process to put the burden on the defendant to produce at least
some evidence that his or her intoxication was involuntary. In
the present case, Abejide produced no evidence to show that
his intoxication was involuntary and the evidence presented by
the State did not so indicate. Given the absence of evidence to
support a finding of involuntary intoxication, we therefore conclude that the district court did not violate due process when it
refused Abejide’s proposed instruction.
For completeness, we note that the facts of this case do not
require us to address—and we do not address—whether other
features of § 29-122 comply with due process requirements.
In this regard, because there was no evidence that Abejide’s
intoxication was involuntary, we need not consider whether
§ 29-122 may constitutionally require “clear and convincing evidence” that intoxication was involuntary. In addition,
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because Abejide failed to meet the burden of production, we
need not consider whether § 29-122 may constitutionality
require the defendant to bear the burden of persuasion on the
issue of involuntary intoxication.
Based on the facts of this case, we conclude that the district
court did not err and did not violate Abejide’s due process
rights when it refused Abejide’s instruction regarding involuntary intoxication.
2. There Was Sufficient Evidence to
Support A bejide’s Convictions
Abejide claims that the evidence in this case was insufficient to support his convictions for attempted first degree
sexual assault and terroristic threats. He generally argues that
the only evidence against him on certain elements was the
victim’s testimony at trial and that the victim’s testimony was
not credible. The credibility of witnesses was for the jury to
decide. Therefore, if the jury found the testimony in this case
to be credible, we determine that there was sufficient evidence
to support Abejide’s convictions. See State v. Custer, 292 Neb.
88,
871 N.W.2d 243 (2015).
With regard to the conviction for terroristic threats, Abejide
notes that at trial, the victim testified on direct examination
that he had threatened to “‘knock her out’” but that on cross-examination, he presented evidence of the victim’s pretrial
deposition testimony in which she denied that Abejide had
verbally threatened her. Brief for appellant at 29. Abejide contends that the victim’s trial testimony was the only evidence
to support a finding that he had threatened the victim and that
such testimony was contradicted by the victim’s own deposition testimony. With regard to both convictions, Abejide asserts
that the victim’s testimony as a whole was not credible because
portions of her testimony were contradicted by the testimony
of other witnesses and she frequently testified that she did not
know or could not recall certain details due to her intoxication
at the time.
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Having reviewed the evidence in this case, in particular the
testimony of the victim and the testimony of the police officer
who came upon the scene during the incident, we conclude
that there was sufficient evidence, if believed, to support the
convictions. Abejide’s arguments focus on his claim that the
victim was not credible because of inconsistencies in her testimony and her inability to clearly remember certain events.
In this regard, we observe that the inconsistencies in the victim’s testimony were demonstrated to the jury through cross-
examination, and therefore, the jury was in a position to fully
evaluate the victim’s testimony.
In reviewing for sufficiency of the evidence, we do not
resolve conflicts in the evidence or pass on the credibility
of witnesses, because such matters are for the finder of fact.
See
Custer, supra. By its verdict, the jury as fact finder determined, based on all the evidence, including that of the victim,
that the crimes charged had been committed. We determine
that the evidence admitted at trial, viewed and construed most
favorably to the State, was sufficient to support the convictions for attempted first degree sexual assault and terroristic threats.
3. A bejide’s Claims of Ineffective Assistance
of Trial Counsel A re Either Without
Merit or Not R eviewable
on Direct A ppeal
Abejide claims that he received ineffective assistance of trial
counsel for a number of reasons. We conclude with respect to
each claim that either the claim is without merit or that the
record on direct appeal is insufficient to determine the merits
of the claim.
[9,10] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. State v. Collins, 292 Neb. 602,
873 N.W.2d
657 (2016). The determining factor is whether the record is
sufficient to adequately review the question.
Id. An ineffective
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assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
Id.
Abejide first claims that he received ineffective assistance
when counsel failed to move to dismiss the attempted sexual
assault charge. We determined above that the evidence presented by the State was sufficient to support the convictions.
The district court would have properly overruled a motion to
dismiss, and Abejide cannot show that he was prejudiced by
counsel’s purported failure to so move. Therefore, such claims
are without merit.
Abejide also claims that he received ineffective assist
ance because trial counsel failed to adequately prepare his
defense. He asserts that counsel did not diligently pursue
potential witnesses to testify on his behalf and that counsel did not adequately present a consent defense, either in
opening statement, in cross-examination of the victim, or
in closing argument. Abejide’s claims involve allegations
regarding evidence and arguments not presented at trial and
not present in the record, and furthermore, his claims would
require proof of matters outside the trial record. We therefore
conclude that these claims cannot be adequately reviewed in
this direct appeal.
Abejide finally claims that trial counsel failed to properly
challenge the constitutionality of § 29-122. As we determined
above, the district court did not violate due process when it
refused Abejide’s proposed instruction on involuntary intoxication. Therefore, to the extent the constitutionality of § 29-122
was implicated by the facts of this case, Abejide’s challenge
was without merit. Therefore, Abejide’s claim of ineffective
assistance of counsel with regard to counsel’s presentation of
the challenge is without merit.
In sum, Abejide’s claims regarding trial counsel’s failure to
file a motion to dismiss and to properly challenge the constitutionality of § 29-122 are without merit. Abejide’s claim of
ineffective assistance of counsel with respect to presenting a
proper defense cannot be reviewed in this direct appeal.
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4. The Court Properly Used A bejide’s Prior
SORA Violation Convictions to Find
That He Was a H abitual Criminal,
and H is Sentence Was Not
Otherwise Excessive
Abejide finally claims that the court imposed an excessive
sentence. He argues, inter alia, that he should not have been
sentenced as a habitual criminal, because the court improperly
considered two prior convictions for violations of the SORA
to support its finding that he was a habitual criminal. We conclude that such convictions could be used to support the habitual criminal determination and that the court did not otherwise
abuse its discretion in sentencing.
(a) Habitual Criminal Enhancement
We first address Abejide’s claim that the district court erred
when it used the prior SORA violation convictions to support
the habitual criminal determination. As explained below, we
reject this assignment of error and affirm the district court’s
finding that Abejide was a habitual criminal under Neb. Rev.
Stat. § 29-2221 (Reissue 2008).
Abejide was found to be a habitual criminal and was sentenced as such pursuant to § 29-2221, which provides:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison, in this or any other state or by
the United States or once in this state and once at least
in any other state or by the United States, for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal . . . .
The district court found that Abejide was a habitual criminal
based on evidence of three prior convictions: a conviction in
1994 for attempted first degree sexual assault of a child, for
which he was sentenced to imprisonment for 6 to 9 years;
a conviction in 2007 for a violation of the SORA, second
offense, for which he was sentenced to imprisonment for 2 to
4 years; and a conviction in 2011 for a violation of the SORA
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for which he was sentenced to imprisonment for 20 months to
4 years.
Abejide acknowledges that the current felony convictions
for attempted first degree sexual assault and terroristic threats
are felonies subject to application of the habitual criminal statute. However, he argues that the two prior convictions for violations of the SORA were, by their nature, subsequent offenses,
and that as such, the SORA convictions cannot serve as prior
convictions to support a finding that he was a habitual criminal
in the current proceeding. Abejide claims that using the SORA
prior convictions results in a “double penalty enhancement,”
which is invalid under State v. Chapman,
205 Neb. 368,
287
Neb. 697 (1980). Brief for appellant at 37.
In
Chapman, supra, a jury found the defendant guilty of
operating a motor vehicle while under the influence of alcohol.
After a hearing, the trial court determined that the defendant
had three previous convictions for driving while intoxicated
and the court therefore found that the current offense should
be treated as a third offense. Because the current offense in
Chapman was found to be a “third offense,” it was reclassified
from a misdemeanor to a felony—unlike the “true” felonies at
issue in the current appeal. See, similarly, Goodloe v. Parratt,
605 F.2d 1041, 1048 (8th Cir. 1979) (generally noting distinction between enhanced offenses and “‘true’” felonies). After an
additional hearing, the court in Chapman determined that the
defendant should be sentenced as a habitual criminal. The two
prior convictions used to support the habitual criminal finding
were a conviction for driving while intoxicated, third offense,
and a conviction for malicious destruction of property.
In Chapman, we held that “offenses which are felonies
because the defendant has been previously convicted of the
same crime do not constitute ‘felonies’ within the meaning of
prior felonies that enhance penalties under the habitual criminal statute.”
205 Neb. at 370,
287 N.W.2d at 698. Among other
observations, we disapproved of the trial court’s use of such
prior convictions under the habitual criminal statute, because
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such use resulted in impermissible “double penalty enhancement through application of both a specific subsequent offense
[provision found in the driving under the influence] statute
and a habitual criminal statute.”
205 Neb. at 370,
287 N.W.2d
at 699. We therefore determined that the defendant’s sentencing was controlled by the driving under the influence statutes
and that he was exempt from operation of the habitual criminal provisions.
Although Abejide does not cite the case, his argument may
be more similar to and could arguably find support in State
v. Hittle,
257 Neb. 344,
598 N.W.2d 20 (1999). In Hittle, the
defendant was convicted of felony flight to avoid arrest and
felony driving under a 15-year license suspension. The trial
court found that the defendant was a habitual criminal based
on evidence that he had two prior convictions, each of which
resulted in imprisonment for not less than 1 year. One of the
prior convictions was for operating a motor vehicle while his
operator’s license was suspended or revoked.
The defendant in Hittle cited
Chapman, supra, to support
his argument that driving under suspension is a “subsequent
offense” that enhances the punishment for a prior conviction
for driving under the influence.
257 Neb. at 355,
598 N.W.2d
at 29. In Hittle, we said that a conviction for driving under
suspension was not a “subsequent offense” in the same sense
as the conviction for driving under the influence, third offense,
was a “subsequent offense” of driving under the influence in
Chapman. However, in Hittle, we noted that the statute making
it an offense to drive under suspension was an integral “part of
the statutory scheme designed by the Legislature to criminalize
the operation of a motor vehicle while under the influence of
alcoholic liquor or drugs,”
257 Neb. at 355-56,
598 N.W.2d at
29, and that one can commit the offense of driving under suspension only after having first committed multiple offenses of
driving under the influence.
In Hittle, we said that “in a real sense, the penalty for this
particular act [of driving under suspension] has been enhanced
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by virtue of the defendant’s prior violations of other provisions within the same statute.”
257 Neb. at 356,
598 N.W.2d
at 29. We therefore held in Hittle that “a felony conviction for
driving under a suspended license . . . may not be used either
to trigger application of the habitual criminal statute or as a
prior offense for purposes of penalty enhancement pursuant
thereto.”
Id. We specifically determined in Hittle that because
the defendant’s prior conviction for driving under suspension
could not be considered as a prior conviction for purposes of
the habitual criminal determination, the trial court had erred in
sentencing the defendant as a habitual criminal.
In the present case, two of Abejide’s prior convictions were
for violations of the SORA. And because Abejide acknowledges that the two current felonies are suitable true felonies
subject to the habitual criminal statute, Abejide’s arguments are
directed to the propriety of using the SORA offenses as prior
convictions. In particular, Abejide argues that a conviction for
a violation of the SORA “seeks to further punish an individual
for a sex offense conviction if they [sic] do not abide by the
SORA requirements.” Brief for appellant at 37. In effect, his
argument is that one can violate
Neb. Rev. Stat. § 29-4011
(Supp. 2015), which generally makes it an offense to violate
a registration requirement of the SORA, only after having
first committed a sex offense that required the defendant to be
subject to the SORA and that therefore, § 29-4011 is part of a
statutory scheme to criminalize and punish the underlying sex
offense. Abejide’s argument is reminiscent of Hittle.
At this juncture, it is important to distinguish the facts of
this case compared to the facts in State v. Chapman,
205 Neb.
368,
287 N.W.2d 697 (1980), and State v. Hittle,
257 Neb.
344,
598 N.W.2d 20 (1999). The difference brings important
language contained in the habitual criminal statute into greater
focus and demonstrates why application of the habitual criminal statute to enhance Abejide’s sentence is appropriate. In
Hittle, we noted the difference between a triggering offense,
which is the offense for which the defendant is currently being
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sentenced, and a prior offense, which is one of the offenses that
establishes that the defendant was a habitual criminal at the
time he or she committed the triggering offense. In Chapman,
both the triggering offense and one of the prior offenses were
convictions for driving under the influence, third offense.
In Hittle, one of the triggering offenses and one of the prior
offenses were convictions for driving under suspension.
In the present case, Abejide’s triggering offenses are felony
convictions for attempted first degree sexual assault and for
terroristic threats; Abejide makes no argument that either of
these felony offenses cannot be a triggering offense for habitual criminal enhancement. Instead, Abejide’s contentions focus
on the prior convictions; his argument is solely that his convictions for violations of the SORA cannot be prior offenses
used to establish his status as a habitual criminal at the time he
committed the triggering offenses in this case. For the reasons
discussed below, we determine that the SORA convictions may
be used as prior convictions under the habitual criminal statute,
but we take this opportunity to indicate that we erroneously
suggested in Chapman and Hittle that driving under the influence, third offense, and driving under suspension, respectively,
could not be used as prior convictions where a defendant is
sentenced under the habitual criminal statute.
[11] As noted above, the habitual criminal statute, § 29-2221,
describes the triggering offense as “a felony,” but it describes
the prior convictions as crimes for which the defendant has
been “convicted . . . , sentenced, and committed to prison
. . . for terms of not less than one year each.” By its terms,
§ 29-2221 requires the triggering offense to be “a felony”
before the habitual criminal statute will apply to the sentencing of the triggering offense. But in order to be one of
the prior convictions that establishes habitual criminal status,
§ 29-2221 does not require that the prior conviction was a
“felony” per se; instead, it requires that the prior conviction
resulted in a sentence of imprisonment for a term “of not less
than one year.”
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In State v. Ramirez,
274 Neb. 873, 883,
745 N.W.2d 214,
222 (2008), we recognized that a “felony conviction” and “a
prior conviction resulting in a term of imprisonment of no less
than 1 year” are not coextensive. In Ramirez, we determined
that a previous felony “conviction for manufacturing or distributing marijuana” could be used both to prove an element of the
triggering offense of being a felon in possession of a firearm
under
Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2014), which
required that the defendant had “previously been convicted of a
felony,” as well as to prove a prior conviction under § 29-2221
to establish that the defendant was a habitual criminal and
should be sentenced as a habitual criminal for the offense of
being a felon in possession.
274 Neb. at 877, 745 N.W.2d
at 219. We reasoned that “the predicates for §§ 28-1206 and
29-2221 [are not] necessarily coextensive,” because the “predicate for violating § 28-1206 is a felony conviction, which may
or may not result in the term of imprisonment of ‘not less
than one year’ necessary to establish a predicate [prior conviction] for sentence enhancement under § 29-2221.”
274 Neb. at
883, 745 N.W.2d at 222. We therefore recognized in Ramirez
that the description of prior convictions in § 29-2221 focuses
on the length of the sentence and are not the equivalent of
prior “felonies.”
The distinction between the descriptions in § 29-2221 of the
triggering offense and the prior convictions which we recognized in Ramirez had been blurred in State v. Chapman,
205
Neb. 368, 370,
287 N.W.2d 697, 698 (1980), when we stated
that prior “offenses which are felonies because the defendant
has been previously convicted of the same crime do not constitute ‘felonies’ within the meaning of prior felonies that enhance
penalties under the habitual criminal statute.” (Emphasis supplied). As we noted above, contrary to the expression stated in
Chapman, § 29-2221 does not describe the prior convictions as
“prior felonies” but instead as prior convictions that resulted
in a term of imprisonment of “not less than one year.” And as
we recognized in Ramirez, a “felony conviction” and “a prior
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conviction resulting in a term of imprisonment of no less than
1 year” are not coextensive.
274 Neb. at 883, 745 N.W.2d at
222. Thus, the description that applies to the triggering offense,
described in § 29-2221 as a “felony,” does not necessarily
apply to prior convictions which are described differently in
the same statute. In sum, under the habitual criminal statute,
the triggering offense must be “a felony,” but the focus on prior
convictions must simply be on convictions which resulted in
imprisonment of not less than 1 year.
Abejide has recognized that his triggering offenses are true
felonies and, as such, can trigger application of the habitual
criminal statute, § 29-2221. Abejide’s triggering felonies are
unlike the triggering felonies discussed in
Chapman, supra,
and State v. Hittle,
257 Neb. 344,
598 N.W.2d 20 (1999).
In Chapman, the crime of driving under the influence, third
offense, was a misdemeanor enhanced to a felony, and in
Hittle, the triggering crime of driving under suspension was a
felony as a result of a statutory scheme based on repetition of
misdemeanor driving under the influence offenses. For triggering offense purposes, they were not “true” felonies.
Abejide raises an issue regarding double penalty enhancement with respect to the prior convictions; however, the concern to avoid double penalty enhancement is more properly
directed to the propriety of penalizing the current triggering
crime under the habitual criminal statute. Although double
penalty enhancement is disfavored, see
Chapman, supra, we
have long recognized that the habitual criminal statute is an
enhanced penalty permissible to punish repetitive criminal
conduct reflected in the felony case now before the court. See
State v. Ramirez,
274 Neb. 873,
745 N.W.2d 214 (2008). Under
the habitual criminal statute, impermissible double penalty
enhancement is a concept consideration which is applied to the
triggering crime, but not applied to a prior conviction as urged
by Abejide. The habitual criminal statute penalizes current
crimes but it is not a further punishment or double penalty for
the previous convictions. The role of the previous convictions
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in the habitual criminal statute is to demonstrate that the
defendant has been twice convicted of crimes each of which
resulted in imprisonment of “not less than one year.”
In Chapman and Hittle, we reasoned that the crimes of driving under the influence, third offense, and driving under suspension, respectively, were part of discrete statutory schemes
which already incorporated enhancement mechanisms and
could not be further enhanced as triggering felonies under
§ 29-2221. The reasoning does not lead to the conclusion that
convictions of such crimes can never be used as prior convictions under the habitual criminal statute.
The habitual criminal statute does not enhance the penalty for prior convictions; it is applied to the penalty for the
triggering offense. If the penalty for the triggering offense is
enhanced only pursuant to the habitual criminal statute, the
fact that the penalty for one of the prior convictions was itself
enhanced does not result in a double penalty enhancement of
the triggering offense. As noted, the habitual criminal statute
is focused on enhancing the penalty for the current conviction
when the defendant has prior convictions of a certain type; the
Legislature chose to describe that type of crime in terms of the
sentence imposed rather than in terms of the classification of
the prior offense as a felony.
Given the foregoing understanding, Chapman and Hittle
should have been limited to holding that driving under the
influence, third offense, and driving under suspension were
ineligible to serve as triggering offenses under § 29-2221.
We disapprove State v. Chapman,
205 Neb. 368,
287 N.W.2d
697 (1980), and State v. Hittle,
257 Neb. 344,
598 N.W.2d 20
(1999), to the extent they suggest or hold that the prior convictions of driving under the influence, third offense, and driving
under suspension, each resulting in imprisonment of not less
than 1 year, cannot be used as prior convictions to establish
habitual criminal status when applying § 29-2221. Instead,
such convictions may be used as prior convictions under the
habitual criminal statute as long as they meet the statutory
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requirement that such convictions resulted in terms of imprisonment for not less than 1 year.
In the present case, each of the two current offenses is a
felony and Abejide had prior convictions for violations of
the SORA for which he was sentenced to terms of imprisonment for not less than 1 year. Whether the SORA offenses
could serve as the triggering offense for a habitual criminal
enhancement is not before us. However, it was proper to use
them as prior convictions, because they each met the requirement under § 29-2221 of a sentence of “not less than one
year.” We therefore determine that the district court did not err
when it found Abejide to be a habitual criminal and sentenced
him accordingly.
(b) Excessiveness in General
Having determined that the court did not err when it found
Abejide to be a habitual criminal, we consider his argument
that his sentences were excessive. We first note that at the
time of the offenses in this case, attempted first degree sexual
assault was a Class III felony pursuant to Neb. Rev. Stat.
§ 28-319(2) (Reissue 2008) and
Neb. Rev. Stat. § 28-201(4)(b)
(Cum. Supp. 2014), and making terroristic threats was a Class
IV felony pursuant to § 28-311.01(2). At the time, the sentencing range for a Class III felony was imprisonment for 1 to
20 years, and the sentencing range for a Class IV felony was
imprisonment for a maximum of 5 years. See
Neb. Rev. Stat.
§ 28-105 (Cum. Supp. 2014). However, because Abejide was
found to be a habitual criminal, § 29-2221(1) set the sentencing ranges for both felony convictions as imprisonment for a
mandatory minimum of 10 years and a maximum of 60 years.
Therefore, the sentences of imprisonment for 10 to 20 years for
attempted first degree sexual assault and for 10 to 10 years for
terroristic threats were within statutory limits.
Because the sentences were within statutory limits, we
review the sentences imposed for an abuse of discretion. See
State v. Russell,
292 Neb. 501,
874 N.W.2d 8 (2016). With
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regard to both sentences, we note that by the operation of
§ 29-2221(1), the court was required to impose a mandatory
minimum sentence of 10 years for each offense; therefore,
because the court had no discretion to impose a minimum
sentence of less than 10 years and because the court imposed
the mandatory minimum for each conviction, it did not abuse
its discretion with regard to the minimum. With regard to the
sentence for terroristic threats, the court imposed a maximum
term of 10 years which was equal to the mandatory minimum
sentence. Therefore, because the court imposed the shortest
sentence permissible under § 29-2221(1), there can be no argument that the court abused its discretion or imposed an excessive sentence for the terroristic threats conviction.
[12] With regard to the conviction for attempted first degree
sexual assault, the court imposed a maximum sentence of
20 years. In imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission
of the crime. State v. Collins,
292 Neb. 602,
873 N.W.2d 657
(2016). Abejide contends that the district court did not properly
consider his criminal history. Abejide asserts that although his
history admittedly included convictions for first degree sexual
assault and attempted first degree sexual assault of a child, such
convictions were in 1977 and 1993, respectively, and since the
time of these prior offenses, his criminal history reflects convictions only for less serious offenses. He also asserts that the
court failed to adequately consider that the victim in this case
did not suffer physical injury and did not complete a victim
impact statement.
Abejide further argues that, in addition to the length of the
sentences, the court abused its discretion when it ordered the
sentences to be served consecutive to one another. He cites
State v. Iromuanya,
272 Neb. 178,
719 N.W.2d 263 (2006),
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. ABEJIDE
Cite as 293 Neb. 687
in which we found an abuse of discretion in sentencing, and
for relief ordered, inter alia, that the sentences for two of the
convictions should run concurrently because both offenses
resulted from the same act. Our disposition in Iromuanya was
not a categorical statement regarding whether sentences must
be ordered to be served concurrently, and we note further that
in other cases, we have found that there was not an abuse of
discretion when a court ordered sentences to be served consecutively where the charged offenses were alleged to have arose
from a single transaction. See State v. Van,
268 Neb. 814,
688
N.W.2d 600 (2004).
We find no merit to Abejide’s claim that the district court
imposed excessive sentences based on either the maximum
term for the attempted first degree sexual assault or its order
directing the sentences to run consecutively. The court stated in
its sentencing order that it based its sentencing on “the nature
and circumstances of the crimes and the history, character and
condition” of Abejide and its determination that “imprisonment of [Abejide] is necessary for the protection of the public
because a lesser sentence would depreciate the seriousness of
his crimes and promote disrespect for the law.” Given the statutes, the record before us, and the court’s stated reasoning, we
do not think that the considerations argued by Abejide indicate
the court abused its discretion.
VI. CONCLUSION
Having rejected Abejide’s assignments of error, we affirm
his convictions and sentences for attempted first degree sexual
assault and terroristic threats.
A ffirmed.
Stacy, J., not participating.
