State v. Busby

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BUSBY
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).
STATE OF NEBRASKA, APPELLEE,
v.
ALLEN A. BUSBY, APPELLANT.
Filed September 27, 2022. No. A-21-904.
Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge.
Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and Timothy M. Eppler for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
MOORE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Allen A. Busby was convicted and sentenced on charges of first degree sexual assault and
burglary. On appeal he argues that the district court for Lancaster County committed evidentiary
errors and imposed excessive sentences. He also asserts that his trial counsel was ineffective.
Having considered his arguments and reviewed the record, we affirm his convictions and
sentences.
II. BACKGROUND
Busby and the victim, R.R., are the parents of a daughter born in 2018. Their romantic, but
tumultuous, relationship ended during the pregnancy, but because R.R. believed it was important
for the child to have a relationship with her father, R.R. remained in contact with Busby, providing
-1-
him liberal parenting time. In May or June 2020, they all contracted COVID-19. At the time, Busby
was living in Omaha but because of the need to quarantine, R.R. allowed Busby to stay with her
and the child at her house in Lincoln. Following the 10 to 14 day quarantine period, Busby moved
out of the house. At no time did he have a key to the residence.
On October 24, 2020, Busby and R.R. exchanged multiple texts to make arrangements for
celebrating their daughter’s birthday which was two days later. A disagreement arose between the
two of them because they could not agree on the timing of their plans. R.R. left for her 7:30 p.m.
to 2 a.m. shift at a gentlemen’s club where she worked as a dancer. At approximately 10:30 p.m.,
R.R. received a text message from Busby that read “It’s times like these that I regret having a child
with you. I lied. I do hate you. I have so much negative energy towards you. I wanna come to your
job and throw some piss on you. I’ve lost all respect for you.” R.R. became concerned because
Busby had threatened her in the past and “follows through sometimes, not all the time.”
Shortly after R.R. received the text message, Busby appeared at R.R.’s place of
employment. R.R. did not have any interaction with him, but his presence scared her. After R.R.
finished performing on stage, she approached her manager and told her she was leaving early.
Before leaving, R.R. told one of the other dancers what had happened and then left. According to
R.R., this was approximately 11:30 p.m.
When R.R. arrived home, she explained to the babysitter what had happened at work and
why she was home early. The babysitter was concerned about leaving R.R. alone so she stayed for
approximately an hour. Before leaving, the babysitter locked all the doors and went outside to
“make sure no cars were looming nearby.” She described R.R. as “shaken, and distressed, and
anxious, and fearful.”
According to R.R., she, too, checked to make sure the doors were locked. She testified that
she does not often use the back door to her house so she is unfamiliar with the locks; however,
when she pulled on the door, she felt like it opened a little, so she “flipped the locks.”
At 12:42 a.m., R.R. began receiving a series of text messages from Busby to which she did
not respond. They began with a message that read “Why would you tell anybody what I say to
you?” and culminated in one that read “Bet bitch I’m On my Way!” Busby also called her several
times, but R.R. answered only the first telephone call, during which he was mad and called her
names, so R.R. hung up on him.
R.R. testified that she was trying to convince herself that Busby was not really going to
show up, so she lied down in her bed to try to sleep. Shortly thereafter, she heard Busby on the
porch and she called the non-emergency number for the police. She explained that in the moment,
she became confused and thought that dialing 911 was a request for an ambulance, and because
she needed the police and not an ambulance, she searched on her telephone for the number for the
Lincoln police department. R.R. was on the telephone with the dispatch center when Busby
appeared inside her house. The recorded telephone call was offered and received into evidence.
Upon entering R.R.’s bedroom, Busby grabbed the telephone from her and threw her
against the wall. After a struggle, he pulled her pants down and attempted to penetrate her with his
penis. Unable to do so, he performed cunnilingus on her. According to R.R., Busby was vacillating
between moments of rage and concern that the police were on their way. After a second failed
attempt at intercourse, Busby walked out of her bedroom toward the front door. He then forced
R.R. to perform fellatio on him. Afterwards, R.R. was able to escape out the front door. As she ran
-2-
down the street with Busby chasing her, the police arrived. Busby changed directions and
absconded.
The investigating officer photographed several injuries R.R. sustained in the struggle. R.R.
declined medical treatment initially, but sought treatment the next day and was diagnosed with a
concussion. She did not have a sexual assault nurse’s examination performed. The investigating
officer concluded that Busby had entered the house through the unlocked back door. Busby was
subsequently located, arrested, and charged with first degree sexual assault and burglary.
Trial commenced on September 10, 2021. The day prior, the State filed a notice of intent
to offer evidence of other crimes, wrongs, or acts of the defendant pursuant to Neb. Evid. R. 404,
Neb. Rev. Stat. § 27-404(2) (Supp. 2019). The State sought to offer a recording of a voicemail
Busby left R.R. on September 4, 2020, in which he threatened to break into her house for the
purpose of “terrorizing” her. The court held a hearing on September 10, 2021, at which the State
argued that the evidence was inextricably intertwined with the events of October 24 and 25, 2020,
because the proffered evidence is a “foreshadowing” of what actually occurred about 6 weeks later.
It further argued that if the court considered the voicemail as a prior bad act, it was admissible as
an exception to the prohibition against admissibility because it shows motive, opportunity,
preparation, and planning. The recording of the voicemail was marked as exhibit 1.
Busby’s attorney objected to exhibit 1 on the basis that it was “extremely prejudicial.” He
requested that if the court allowed it, that the message be edited to remove the “extremely foul
language” which he considered to be “extremely prejudicial.” In a written order, the court
determined that exhibit 1 was inextricably intertwined with the events charged and was therefore
not rule 404 evidence. And, even if it were, it was consistent with the exception for evidence
showing motive, opportunity, intent, and plan. It concluded that it did not appear unfairly
prejudicial within the meaning of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).
The State also advised the court that it received a copy of a letter that morning from R.R.
that she had recently received. The letter was marked as exhibit 2 and contains correspondence to
R.R. from Busby suggesting that if she failed to appear for trial he could not be convicted. It also
contained a second piece of paper directed to the parties’ daughter from Busby. The State sought
a conditional ruling from the court on the admissibility of exhibit 2.
Busby’s attorney objected to exhibit 2 on foundational grounds and because any probative
value was “outweighed by the prejudice.” The court did not provide a conditional ruling on exhibit
2; however, when the State offered it during R.R.’s testimony, the court accepted it over Busby’s
“prior objections.”
The jury found Busby guilty of both charges. Following a presentence investigation (PSI),
the court sentenced him to 20 to 30 years’ imprisonment on the sexual assault conviction and 5 to
10 years’ imprisonment on the burglary conviction. The sentences were ordered to be served
concurrently. Busby appeals.
III. ASSIGNMENTS OF ERROR
Restated and renumbered, Busby assigns that the court erred in (1) admitting the September
4, 2020, voicemail (exhibit 1) into evidence; (2) admitting the letter R.R. received shortly before
trial (exhibit 2) into evidence; and (3) imposing excessive sentences. He also assigns that (4) his
trial counsel was ineffective in (a) selecting the jury, (b) failing to obtain a download of R.R.’s
-3-
cellular phone contents, (c) failing to request a continuance to depose an untimely endorsed
witness, (d) failing to specifically object or move to redact portions of exhibit 1, (e) failing to
specifically object or move to redact portions of exhibit 2, (f) failing to object to non-responsive
testimony by R.R. which raised prior bad act evidence, (g) failing to cross-examine R.R. about her
communication to Busby while the case was pending, (h) failing to object during the State’s closing
argument, and (i) failing to argue important points in closing argument.
IV. STANDARD OF REVIEW
We review for abuse of discretion a trial court’s evidentiary rulings on relevance, whether
the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and
the sufficiency of a party’s foundation for admitting evidence. State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017). We also review for abuse of discretion a trial court’s evidentiary rulings on
the admissibility of a defendant’s other crimes or bad acts under rule 404(2), or under the
inextricably intertwined exception to the rule. State v. Burries, supra. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and evidence. Id.A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.V. ANALYSIS
1. EVIDENTIARY RULINGS
(a) Exhibit 1
Busby assigns that the court erred in admitting the September 4, 2020, voicemail (exhibit
1) into evidence. He argues that it failed to comply with rule 403 or rule 404. We disagree.
Rule 403 provides “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.”
Rule 404(2) provides the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he or she acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
Under our decisional law, rule 404(2) does not apply to evidence of a defendant’s other
crimes or bad acts if the evidence is inextricably intertwined with the charged crime. See State v.
-4-
Burries, supra. In its pretrial ruling, the district court determined that exhibit 1 was inextricably
intertwined with the facts as charged, that it was relevant to prove motive, opportunity, intent,
preparation, and plan, and that its probative value was not outweighed by the danger of unfair
prejudice.
Exhibit 1 is a recording of a voicemail that Busby left on R.R.’s cellular phone on
September 4, 2020. In that message, Busby expressed anger and frustration over his inability to
speak with their daughter because R.R. did not answer her phone and had not yet called him back.
In that message, he threatened to “break her door down” and “terrorize” her.
Busby’s attorney objected at the hearing on the notice of intent to offer, stating that the
contents of exhibit 1 were not probative of anything and if there was probative value, the foul
language contained within the message made it “incredibly prejudicial.” When exhibit 1 was
offered at trial, Busby stated that he “renew[ed]” his “prior objections.” The court overruled the
objections and allowed the message to be played for the jury.
Rule 403 requires a trial court to consider whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017). We will not reverse a trial court’s determination on this issue absent an abuse
of discretion. See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
Inextricably intertwined evidence includes evidence that forms part of the factual setting
of the crime, or evidence that is so blended or connected to the charged crime that proof of the
charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes
or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.
State v. Burries, supra. Here, exhibit 1 contains evidence depicting Busby’s level of anger when
he perceives that he is not being given access to his daughter to his satisfaction. Moreover, we
agree with the State that it is a foreshadowing of the events that actually transpired in the early
morning hours of October 25, 2020. Although Busby did not have to “break her door down,” he
did in fact, enter her house and terrorize her. We note that the basis for Busby’s rule 403 objection
was the foul language he used in the voicemail. When considering whether evidence of other acts
is unfairly prejudicial, we consider whether the evidence tends to make conviction of the defendant
more probable for an incorrect reason. State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016). The
vulgarity of Busby’s language does not lead us to the conclusion that the exhibit was unfairly
prejudicial.
We find no abuse of discretion in the court’s determinations that exhibit 1 contained
evidence that was inextricable intertwined with the facts alleged in this case or that the probative
value of exhibit 1 was not outweighed by the danger of unfair prejudice. We recognize that the
court also concluded prior to trial that exhibit 1 was admissible under rule 404(2). However,
because we find that the evidence contained in exhibit 1 was inextricably intertwined and not rule
404 evidence, we need not consider that ruling.
(b) Exhibit 2
Busby argues that the court committed plain error in admitting exhibit 2 into evidence.
Exhibit 2 contained two letters authored by Busby; one directed to R.R. suggesting that if she did
not attend the trial he could not be convicted and the other directed to his daughter. On appeal,
-5-
Busby contends that exhibit 2 was inadmissible because it violated rule 403 and contained
statements that violated rule 404 and Neb. R. Evid. 609, Rev. Stat. § 27-609 (Reissue 2016).
Prior to trial the State brought the contents of exhibit 2 to the attention of the trial, seeking
a conditional ruling. It argued that it was relevant as either admissions by Busby, or consciousness
of guilt, and possible witness tampering. Busby objected on foundational grounds and because any
probative value was “outweighed by the prejudice.” The court did not make a pretrial ruling but
received the exhibit when offered at trial, over an objection by Busby in which he “renew[ed] prior
objections.”
On appeal, Busby directs this court to specific provisions in the letter addressed to R.R. He
claims that the suggestion that R.R. not appear for court could be construed as witness tampering
and, as such, rules 403 and 404 prohibited its admission. He also claims the statement “and send
me back to prison. I don’t think I deserve to go back there” was inadmissible under rules 403, 404,
and 609. In asserting plain error, however, Busby implicitly acknowledges that no objection to this
exhibit was made on these bases at trial. See State v. McSwine, 292 Neb. 565, 873 N.W.2d 405(2016) (defining plain error as error unasserted or uncomplained of at trial). A party who fails to
make a timely objection to evidence waives the right on appeal to assert prejudicial error
concerning the evidence received without objection. State v. Harris, 263 Neb. 331, 640 N.W.2d
24 (2002). On appeal, the defendant may not assert a different ground for his or her objection to
the admission of evidence than was offered to the trier of fact. Id. An objection, based on a specific
ground and properly overruled, does not preserve a question for appellate review on any other
ground. Id.Plain error, however, may be found on appeal when an error unasserted or uncomplained
of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial
process. State v. McSwine, supra. Here, Busby claims “the District Court was derelict by not
exercising its gatekeeping role and failing to analyze Exhibit 2’s admissibility under any Nebraska
evidentiary law.” Brief for appellant at 33. However, as to a trial court’s independent duty relating
to exhibits, even exhibits that are the subject of a motion in limine, the Nebraska Supreme Court
recently stated
We have been directed to no rule of law in Nebraska requiring a trial judge to review, sua
sponte, each exhibit offered in a criminal trial to ensure that no statement or inference
contained therein might be prejudicial to one of the parties. Indeed, the only authority we
find on the question from other jurisdictions supports quite the opposite conclusion.
State v. Childs, 309 Neb. 427, 443, 960 N.W.2d 585, 597 (2021). Consequently, the Court
“decline[d] [the appellant’s] invitation to impose a new duty on trial courts to review all exhibits
sua sponte for potentially prejudicial content not objected to by the parties.” Id. at 445, 960 N.W.2d
at 598.
We observe that when the State requested the conditional ruling from the court, it was not
proffering the exhibit as rule 404 evidence. Therefore, the district court had no independent duty
to review the exhibit under that lens or the lens of rule 609. Although Busby now claims it was
plain error for the court not to exclude exhibit 2 under rule 403, we note that counsel did object on
-6-
that basis and the court overruled that objection. Therefore, there can be no plain error on that
basis.
Moreover, even if we could find judicial error in not reviewing the exhibit sua sponte under
rules 404 or 609, we could not find the failure to exclude the exhibit rises to the level of plain error.
The evidence was overwhelming that Busby willfully entered R.R.’s house through a closed door
with the intent to commit a sexual assault and did, in fact, sexually assault R.R. in the first degree.
Failing to correct any error in admitting exhibit 2 into evidence would not result in a miscarriage
of justice or damage the integrity, reputation, and fairness of the judicial process. This assigned
error fails.
2. EXCESSIVE SENTENCES
Busby claims that the district court abused its discretion by imposing excessive sentences.
He does not allege that the sentences fall outside the statutory limits; rather, he argues that the
sentences imposed do not fit him and exceed the minimum period necessary to meet the policy
goals of incarceration. We disagree.
Busby was convicted of first degree sexual assault, a Class II felony, punishable by 1 to 50
years’ imprisonment. See, Neb. Rev. Stat. § 28-319 (Reissue 2016); Neb. Rev. Stat. § 28-105(Cum. Supp. 2020). He was also convicted of burglary, a Class IIA felony, punishable by 0 to 20
years’ imprisonment. See, Neb. Rev. Stat. § 28-507 (Reissue 2016); § 28-105. He was sentenced
to 20 to 30 years’ imprisonment for the first degree sexual assault and 5 to 10 years’ imprisonment
for the burglary conviction with the sentences to be served concurrently. Therefore, the sentences
fall within the statutory guidelines and we review for an abuse of discretion.
In reviewing whether an abuse of discretion occurred during sentencing, an appellate court
determines whether the sentencing court considered and applied the well-established factors and
any applicable legal principles in determining the sentence to be imposed. State v. Grant, 310 Neb.
700, 968 N.W.2d 837 (2022). When imposing a sentence, the 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. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).
Busby argues that the sentences and the district court’s sentencing comments demonstrate
that it placed much emphasis on the nature of the crime committed and failed to give weight to the
other factors such as his willingness to take responsibility for his actions and his low score on the
Vermont Assessment for Sex Offenders. At sentencing, the court advised Busby that it had
considered all of the comments of counsel, along with Busby’s comments at sentencing, and all of
the information in the PSI. It verified that Busby was 33 years of age, noted that he had obtained
his GED while he was previously incarcerated, commented on his family and upbringing, and
acknowledged the remorse he had expressed. It noted the relevant sentencing factors and
concluded that it needed to take into account the violence involved and the need to provide safety
to the community.
The PSI indicates that Busby has a prior violent criminal history which includes a
conviction for robbery in 2007, a domestic abuse protection order in 2014, and a prior domestic
disturbance reported by R.R. in 2019. Busby scored in the high to very high level in eight out of
-7-
the nine categories of the LS/CMI. He admitted to daily use of alcohol and marijuana and weekend
use of cocaine “whenever he had the money to use it.” According to the probation officer, Busby
was not taking responsibility for his actions; although he did not deny the offense, he denied it was
his intent to assault R.R. and blamed his actions on his substance abuse.
The district court made clear at sentencing that it considered the information contained in
the PSI, the comments made at sentencing, and the required factors. There is no indication that the
court did not meaningfully consider any mitigating factors contained in the record, including those
Busby highlighted at sentencing and here on appeal. Therefore, based on the record before us, we
cannot find that the sentences imposed constitute an abuse of discretion.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his
or her counsel’s performance was deficient, and that the deficient performance actually prejudiced
the defense. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). To show that counsel’s
performance was deficient, a defendant must show that counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. Id. To show prejudice, the defendant
must demonstrate a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. Id. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id. However, on direct appeal, an appellant is not required
to allege prejudice when claiming ineffective assistance of trial counsel. State v. Filholm, 287 Neb.
763, 848 N.W.2d 571 (2014).
On direct appeal, the resolution of ineffective assistance of counsel claims turns upon the
sufficiency of the record. Id. The Supreme Court has often said that the fact that an ineffective
assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be
resolved. Id. The determining factor is whether the record is sufficient to adequately review the
question. Id.Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit or in the rare case where trial counsel’s error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
We now turn to Busby’s specific assigned errors that his counsel was ineffective.
(a) Download of R.R.’s Cellular Phone
Busby assigns that his trial counsel was ineffective in failing to receive from the State the
download of R.R.’s cellular phone contents. He argues that his trial counsel informed him that he
was “unable” to receive from the State the electronic evidence downloaded from R.R.’s cellular
phone data and did not seek either a discovery motion or file a motion in limine as to this evidence.
Brief for appellant at 24. Consequently, he claims he was prejudiced in forming his defense and
preparing for trial.
Although Busby does not indicate what beneficial evidence would have been secured by
obtaining a copy of this evidence, we conclude that the assignment of error is specifically pled.
The Supreme Court has stated that in a direct appeal, an appellant must state with specificity his
-8-
or her counsel’s allegedly deficient conduct. See State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022). The court has explained that an assignment of error that counsel was ineffective by failing
to call witnesses is a mere placeholder and insufficient to preserve a claim. See State v. Abdullah,
289 Neb. 123, 853 N.W.2d 858 (2014). But if an appellant identifies the witness by name or
description, an appellate court does not need specific factual allegations as to what the person or
persons would have said. See State v. Blake, supra.We determine that Busby’s argument that his counsel should have sought a discovery
motion to obtain the evidence the State secured from R.R.’s cellular phone is akin to identifying a
particular witness, and it is not necessary that Busby also provide specific factual allegations as to
what that evidence would have revealed. Therefore, his assignment of error and supporting
argument that failure to pursue a discovery motion to obtain this information prejudiced him in
forming his defense and preparing for trial is sufficient to preserve it. But because the record does
not reveal what information R.R.’s cellular phone contained, we cannot resolve this allegation of
ineffective assistance of counsel on direct appeal.
Busby also argues under this assigned error that counsel was ineffective in failing to file a
motion in limine as to the content obtained from R.R.’s cellular phone. However, the only
information downloaded from R.R.’s cellular phone and introduced at trial included the voicemail
from Busby in September 2020, screenshots of R.R.’s call log showing when Busby called her,
and text messages between Busby and R.R. the night/morning of the incident. Busby initiated
nearly all of these communications; therefore, he was aware of their content. Moreover, the State
sought a pretrial ruling from the court regarding the admissibility of the September voicemail from
Busby and defense counsel stated his objections to the evidence. Although the court did not make
a pretrial ruling, when the voicemail was offered at trial, defense counsel renewed his objections
and they were overruled. Therefore, even if counsel had filed a motion in limine as to this evidence,
the result would not have been different. Busby was not prejudiced by counsel’s failure to file a
motion in limine as to the September voicemail. See State v. Schwaderer, 296 Neb. 932, 898
N.W.2d 318 (2017).
The other evidence offered at trial from R.R.’s cellular phone, the screen shot of R.R.’s
phone log, and the text messages between Busby and R.R., were properly admitted, so again, a
motion in limine would have been unsuccessful. Busby cannot show prejudice on this claim,
despite his allegation to the contrary. Therefore, this claim fails.
As stated above, however, Busby’s claim of ineffective assistance as it relates to the failure
to seek a discovery motion as to the content of R.R.’s cellular phone is preserved.
(b) Voir Dire
Busby claims that potential jurors were “visibly emotional” in response to the case
description during voir dire and counsel was ineffective in failing to either inquire about their
reactions or strike them from the jury. He asserts he was prejudiced because these jurors remained
on the panel. He does not provide the names of these jurors.
The record reveals that during voir dire, two potential jurors stated that they had previously
been sexually assaulted. Both of them were stricken for cause. Another potential juror volunteered
that her mother was sexually assaulted; she ultimately was not selected as a juror. The record does
-9-
not reveal that any potential juror expressed any reaction to the subject matter and without
identifying information, this allegation is insufficiently pled.
In the context of a claim that counsel was ineffective for calling witnesses, the Supreme
Court has required that they be identified. See, State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022); State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). Such specificity is necessary so
that the postconviction court may later identify whether a particular claim of failing to investigate
a witness is the same one that was raised on direct appeal. State v. Blake, supra.We find the same reasoning applies here. In order to preserve a claim that counsel was
ineffective in failing to more adequately question a potential juror during voir dire, a defendant
must identify that juror so that a postconviction court may later identify whether counsel was
ineffective in failing to make further inquiry of that potential juror. This assignment of error fails
due to lack of specificity.
(c) Continuance
After jury selection had occurred, the district court allowed the State to endorse as an
additional witness the babysitter who was at R.R.’s house on October 24 and 25, 2020. Busby
claims that although defense counsel objected, he did not request a continuance to depose the
witness and that this prejudiced his ability to properly prepare for trial.
Nebraska law requires a prosecuting attorney to endorse the names of known witnesses at
the time the information is filed. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010); see
also Neb. Rev. Stat. § 29-1602 (Cum. Supp. 2020). The purpose of this requirement is to give the
defendant notice as to witnesses who may testify against him or her and give the defendant an
opportunity to investigate them. State v. Sandoval, supra. However, a trial court may allow
witnesses to be endorsed after an information is filed when doing so does not prejudice the
defendant in the preparation of his or her defense. State v. Molina, 271 Neb. 488, 713 N.W.2d 412(2006). In order to obtain a reversal on the grounds of an additional endorsement of witnesses, the
defendant must have requested a continuance at trial and must demonstrate prejudice. State v.
Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
At the hearing on the motion to endorse, the State argued that the babysitter’s name
appeared in a recorded statement of the victim, but it did not know her last name at the time.
Furthermore, R.R. talked about the babysitter when R.R.’s deposition was taken in March 2021.
Due to these disclosures, the State asserted the defense was aware of her. Busby’s attorney
objected, stating the babysitter was “easily identifiable” and due to the late hour of the disclosure,
requested that it be denied. Because the babysitter was known to both parties and was discussed in
R.R.’s deposition “months ago” the court allowed the endorsement. Busby did not request a
continuance.
Busby claims on appeal that counsel was ineffective in failing to request a continuance
after the endorsement was allowed. He asserts a continuance was necessary to depose the
babysitter in order to properly prepare for trial. However, Busby cannot show prejudice in
counsel’s failure to request a continuance to depose the babysitter. Most of the testimony she
provided was cumulative of R.R.’s testimony except for her confirmation that when she returned
to the house after the assault, the house was in disarray and R.R. had visible injuries that she did
- 10 -
not previously have. That testimony, however, was cumulative of the photographs that were
received into evidence.
Furthermore, as the State observes, Busby elicited testimony from the babysitter that she
locked the doors before leaving, which meant that R.R.’s later actions actually unlocked the back
door. He used the babysitter’s testimony during his closing argument to support his theory of the
case that R.R. “had a plan.” She intentionally unlocked the back door and let the babysitter leave
so she would not be there “to interfere when the police showed up.”
Given the substance of the babysitter’s testimony, we find no prejudice to Busby in
counsel’s failure to request a continuance to depose her. This claim of ineffective assistance of
counsel fails.
(d) State’s Offer of Exhibit 1
Exhibit 1 is a one minute and four second voicemail Busby left for R.R. on September 4,
2020, in which he threatened to break down the door and terrorize her. It was the subject of the
State’s notice of intent to offer rule 404 evidence, although the State argued it did not qualify as
rule 404 evidence because it was inextricably intertwined with the events of October 24 and 25.
The State asserted, in the alternative, that if it was rule 404 evidence, it was admissible as evidence
of motive, intent, plan, and opportunity. In response, Busby argued that the exhibit was “extremely
prejudicial” and did not prove “a whole lot of anything.” He further argued that if there was any
probative value, the exhibit could be narrowed down to remove “a lot of the extremely foul
language, which is incredibly prejudicial.”
The court issued an order, finding that the voicemail was inextricably intertwined with the
alleged facts of the offenses in the case and that even if it were rule 404 evidence, it came within
the exception of rule 404(2). Finally, the court determined that it was not unfairly prejudicial within
the meaning of rule 403.
Busby assigns on appeal that counsel was ineffective due to his failure to specifically object
or move to redact his irrelevant and unfairly prejudicial statement contained in exhibit 1. He argues
that although counsel generally objected to the admission of exhibit 1, he failed to argue the
balancing test of rule 403 or formally move to redact portions of the exhibit, particularly that
portion in which Busby asserts that he does not care about a “restraining order” which violates rule
404. Brief for appellant at 27.
Consistent with our analysis above regarding the admissibility of exhibit 1, we conclude
that counsel was not ineffective in failing to argue the balancing test of rule 403. We agree with
the district court that the voice message was inextricably intertwined with the charged events.
Therefore, regardless of defense counsel’s argument, the exhibit was admissible. As a matter of
law, counsel cannot be ineffective for failing to raise a meritless objection. State v. Schwaderer,
296 Neb. 932, 898 N.W.2d 318 (2017).
Because the court determined after listening to the contents of exhibit 1 that the exhibit’s
probative value was not outweighed by the danger of unfair prejudice, there was no basis upon
which to redact portions of the exhibit, which we note, was requested by Busby. As observed by
the State, a motion for redaction functions as a motion in limine requesting that certain evidence
be withheld from the jury due to its prejudicial nature. See State v. Huston, 285 Neb. 11, 824
N.W.2d 724 (2013). Given our concurrence with the district’s ruling on the admissibility of exhibit
- 11 -
1, counsel was not ineffective in failing to request redaction of the reference to a restraining order
because the statement at issue was not unfairly prejudicial. We reject this assigned error.
(e) R.R.’s Nonresponsive Testimony
R.R. testified on both direct and cross-examination that Busby had made prior threats to
her during the course of their relationship and that he suffered from alcohol and drug problems.
On appeal, Busby argues that counsel was ineffective in failing to object to her testimony on the
basis that it was non-responsive or constituted evidence of prior bad acts in violation of rules 403
and 404. We conclude that counsel was not ineffective for failing to object.
Evidence of a defendant’s threats to an assault victim can be admitted under the
inextricably intertwined exception to rule 404. State v. Burries, 297 Neb. 367, 900 N.W.2d 483(2017). Such evidence may be necessary to present a coherent picture of the crime and be part of
the factual setting. Id. We find that to be true here. The prior threats Busby levied against R.R.
were necessary to present a coherent picture of the events that occurred on October 24 and 25,
2020. The State’s theory of the case was that Busby had a control issue and when he could not
have his daughter on her birthday at the time he desired, he became angry, threatened R.R., and
ultimately sexually assaulted her.
Similar to our analysis above regarding the admissibility of exhibit 1 that contained a
threatening voice message by Busby to R.R., evidence that Busby made prior threats to R.R. were
necessary to present a coherent picture of the crime and was part of the factual setting. The
evidence did not show propensity for the sexual assault, but, rather established that Busby had
made threats and acted upon them, and therefore was admissible. See, e.g., State v. Cullen, 292
Neb. 30, 870 N.W.2d 784 (2015) (finding pattern of physical abuse was admissible as inextricably
intertwined); State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
Even if the prior threats were not inextricably intertwined, they would be admissible under
rule 404(2) that provides an exception to the admissibility of prior bad acts when offered for a
purpose other than to prove character. R.R. testified that the text messages she received on the
night of October 24, 2020, and the morning of October 25 concerned her and based on Busby’s
prior threats, she tried to evaluate whether he would really follow through on them. She repeatedly
stated that based upon Busby’s prior threats, she was uncertain whether he would act upon them.
This provides context to R.R.’s further actions of allowing the babysitter to leave and her attempt
to go to sleep despite the pending threats. We reject Busby’s argument that counsel was ineffective
in this regard.
Busby also takes issue with R.R.’s testimony that in her opinion he suffered from alcohol
and drug problems and argues counsel should have objected. However, R.R. expressed this opinion
to explain her statement to him that “Maybe . . . this will help you get the help that you need” when
he realized the police were on their way. Aside from the fact that it was couched as an opinion
which the jury was free to discredit, it was also a single reference in over 130 pages of testimony
from R.R. Furthermore, Busby, himself, stated in exhibit 2 that “I’m clean and sober,” thereby
implying a past practice of using drugs and alcohol.
Given R.R.’s passing reference to drugs and alcohol, and Busby’s own admission to having
used both, we conclude that he cannot prove prejudice resulting from counsel’s failure to object to
R.R.’s testimony.
- 12 -
(f) State’s Offer of Exhibit 2
As explained above, exhibit 2 contains a copy of a letter sent by Busby to R.R. shortly
before trial. Busby’s counsel objected to the court receiving it as evidence on the basis of
foundation and that its probative value was outweighed by its prejudice. Busby argues on appeal
that counsel was ineffective for not specifically arguing rules 403, 404, and 609. He identifies a
specific reference in the letter about going “back to prison” as the basis for his claim.
However, as set forth above in our analysis of his assigned error regarding the court’s
receipt of exhibit 2, the exhibit was admissible. The court overruled Busby’s rule 403 objection
and we concur with that decision. As to rule 404, Busby’s statement does not identify what other
crime or wrong he had committed, and counsel was not ineffective for failing to object on this
basis. See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017) (counsel not ineffective for
failing to make meritless objection).
Rule 609 precludes attacking a witness’ credibility with evidence that he has been
convicted of a crime if that conviction is more than 10 years old or if the crime was punishable by
less than 1 years’ imprisonment. See rule 609. However, due to the vague reference of being sent
“back to prison,” we find no prejudice to Busby. Reviewing the record as a whole, there is no
reasonable probability that but for counsel’s failure to object to this portion of exhibit 2, the result
of the proceeding would have been different.
(g) Cross-Examination of R.R.
Busby assigns that counsel was ineffective in failing to cross-examine R.R. about her
communications with him while the case was pending. Our record does not contain any
information regarding communications by R.R. to Busby while the case was pending. Therefore,
we find the record insufficient to address this claim.
(h) State’s Closing Argument
During closing arguments, the State recounted that R.R. testified that Busby “put his penis
in her mouth, forced her head back and forth to stimulate his penis.” He further stated that she
testified that “He was moving her mouth on his penis.” On appeal, Busby argues that because these
were misstatements as to “a fact crucial to an essential element,” lack of consent, he was
prejudiced. Brief for appellant at 30. We disagree.
Any person who subjects another person to sexual penetration (a) without the consent of
the victim, (b) who knew or should have known that the victim was mentally or physically
incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor
is nineteen years of age or older and the victim is at least twelve but less than sixteen years
of age is guilty of sexual assault in the first degree.
Neb. Rev. Stat. § 28-310 (Reissue 2016). Therefore, as relevant to this case, the State was required
to prove that Busby subjected R.R. to cunnilingus or fellatio without her consent. See Neb. Rev.
Stat. § 28-318 (Reissue 2016) (defining sexual penetration to include cunnilingus and fellatio).
Without consent is defined to mean:
(a)(i) The victim was compelled to submit due to the use of force or threat of force or
coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim
- 13 -
expressed a lack of consent through conduct, or (iv) the consent, if any was actually given,
was the result of the actor’s deception as to the identity of the actor or the nature or purpose
of the act on the part of the actor.
§ 28-318(8).
We agree that the statement attributed by the State to R.R. does not appear in her testimony.
Rather, she testified that Busby told her she “need[ed] to suck [his] dick” and forced her to the
ground on her knees and “put[] his penis in [her] mouth.” As to the issue of consent, however,
neither scenario depicts consent by R.R. and given the narrative by R.R. of the events that
transpired, she clearly did not consent to sexual penetration by Busby that night. Therefore, Busby
cannot show he was prejudiced by counsel’s failure to object to the State’s comments. This
argument fails.
(i) Closing Argument
Finally, Busby argues that his counsel failed to argue “several important points during
closing arguments.” Brief for appellant at 30. Specifically, he claims counsel should have
emphasized the lack of physical evidence to support a sexual assault and that the State failed to
prove beyond a reasonable doubt that any penetration occurred or that it was not consensual. But
his own argument is paradoxical. He states “trial counsel should have argued that there was a lack
of physical evidence to find beyond a reasonable doubt any sexual contact was actual penetration.
[R.R.] described the only alleged penetration to be fellatio, to which she testified she consented.”
Brief for appellant at 31. Fellatio is, by statutory definition, sexual penetration, which is an element
the State must prove. See, § 28-310; § 28-318. Therefore, if fellatio occurred, the element of
penetration was met and it would be inconsistent to admit that there was fellatio but deny
penetration.
As to the issue of consent, contrary to Busby’s argument, R.R. did not consent to fellatio.
Rather, R.R. described the whole event as nonconsensual. Although she testified that she agreed
to his second request to have sex with him, she explained that it was an attempt to “buy [herself]
some time and safety” until the police arrived. The definition of without consent includes a
situation in which the victim feels compelled to submit due to the use of force or threat of force or
coercion. See § 28-318. Regardless, R.R. did not testify that she ever agreed to perform fellatio on
him. Furthermore, she testified that Busby also performed cunnilingus without her consent, another
form of penetration. Therefore, Busby cannot prove prejudice due to counsel’s failure to make the
argument he asserts should have been made.
Busby also argues that the State should have argued the absence of physical evidence to
prove the lack of penetration. But counsel did argue that there was no DNA evidence, “No saliva,
no semen, it just didn’t happen.” This claim of ineffective assistance of counsel fails.
VI. CONCLUSION
We find no error in the district court’s evidentiary rulings on exhibits 1 and 2, nor any
abuse of discretion in the sentences imposed. With the exception of Busby’s claim related to the
- 14 -
cross-examination of R.R., we reject his claims of ineffective assistance of counsel and affirm his
convictions and sentences.
AFFIRMED.
- 15 -