INBODY, Chief Judge.
Joshua G. Alfredson was convicted by a jury in the district court for Lancaster County of first degree sexual assault and second degree false imprisonment. The district court sentenced Alfredson to 15 to 20 years' imprisonment for first degree sexual assault and to 1 year's imprisonment for second degree false imprisonment, to run concurrent to the first sentence. Alfredson appeals from his convictions and sentences. For the following reasons, we affirm.
Alfredson was charged by information with first degree sexual assault, a Class II felony. See Neb. Rev. Stat. § 28-319 (Reissue 2008). He was also charged with first degree false imprisonment, a Class IIIA felony. See Neb. Rev. Stat. § 28-314 (Reissue 2008). These charges arise from an incident which occurred in the late evening and early morning hours of April 4 and 5, 2009. The victim, a legal assistant with a law firm, had been sporadically involved in an intimate relationship with Alfredson since 2007. The two went to school together at a local college and eventually both the victim and Alfredson were employed at the law firm. The relationship became intimate in 2008, and then again in March 2009, through the night of the incident. That night, Alfredson contacted the victim via text message for a ride home. The victim drove to the establishment where Alfredson had been drinking with some friends, picked him up, and drove him to another location where his car was parked.
The events which transpired thereafter were disputed at trial. The victim testified that she suggested to Alfredson that he return to her house to "sleep it off" because she thought he had had too much to drink and should not drive himself home. The victim explained that Alfredson was stumbling, was slurring his words, smelled like alcohol, and was talking about hurting and/or killing himself. The victim testified that Alfredson was angry and wanted to drive himself home. The victim followed him to his apartment and asked Alfredson if she could come up to his apartment with him because she was worried about his well-being.
The victim testified that, once inside the apartment, Alfredson made himself a drink with whiskey and juice and, over the course of the next few hours, Alfredson continued to drink while the two talked. Alfredson became increasingly angry throughout the conversation. The victim testified that Alfredson had ingested cocaine, which came from a prescription bottle on his counter. The victim described the contents of the bottle as a white powder and indicated that she knew it was cocaine because Alfredson told her that the powder was cocaine. The victim testified that Alfredson needed help finding his bathroom and urinated in the shower. The victim testified that a short time later, Alfredson went back into the bathroom and urinated on the floor of the bathroom. The victim testified that she was worried about Alfredson and took the prescription bottle from the kitchen counter while he was in the bathroom. The victim told Alfredson that she was leaving, and he told her to "go ahead and go." However, the victim testified that once Alfredson noticed the missing prescription bottle, he did not allow her to leave until she returned it. The victim testified that she attempted to leave, but Alfredson took her car keys and blocked the front door of the apartment.
The victim testified that the situation began to escalate from that point, with Alfredson tackling her and threatening to break her arm. The victim explained that during the struggle, Alfredson also threatened to break her neck; kill her, her family, and her friends; and pushed her face into the carpet. The victim testified that after several minutes, Alfredson got off of her and went into his bedroom. The victim followed Alfredson and explained that he told her if she wanted her keys, she would have to get into bed with him. The victim testified that she leaned over the bed to find the keys and that Alfredson grabbed her, pinned her down, and pushed himself on top of her. The victim testified that Alfredson said he was getting "horny" but that she told him they were not "going to have sex like this." The victim testified that she told Alfredson "no" several times. The victim testified that Alfredson grabbed her breast and threatened to "rip it off." The victim testified that Alfredson pulled her pants and underwear down and inserted his penis in her vagina. After several minutes, Alfredson got off of the victim and went into the living room.
The victim testified that she pulled her pants up and walked into the living room to find Alfredson blocking the door and refusing to allow her to leave. The victim testified that Alfredson came toward her, threw her at the couch, got on top of her, and again, pulled her pants and underwear down. The victim testified that, during each incident, she continued to tell Alfredson "no." The victim testified that Alfredson bit her on the neck, cheek, and ear before again inserting his penis into her vagina. The victim testified that when Alfredson got up, she got dressed and again told Alfredson that she was leaving. The victim testified that Alfredson stood in front of the door, urinated, and told her that she was going to bed with him and was not going to leave. The victim explained that Alfredson grabbed her arm, led her to the bedroom, and told her to go to sleep. Once Alfredson fell asleep, the victim sent a text message to her friend, but testified that she did not call anyone else or the police because she was scared. The victim testified that she fell asleep and awoke around 7 a.m. when she got dressed, found her keys and cellular telephone, and left the apartment. The victim testified that during the next morning, she contacted friends and the human resources facilitator with her employer, who took her to the hospital.
At the hospital, the victim underwent a sexual assault examination. The sexual assault nurse examiner testified that the victim had contusions on her right arm, left breast, and lower left jaw, in addition to an imprint of her braces on the inside of her lower lip and an impression inside of her cheek. The examination also revealed a contusion and multiple tears on the external genitalia caused by acute blunt force trauma.
The victim testified that, after returning home from the hospital, she flushed the contents of Alfredson's prescription bottle down the toilet and later gave the bottle to the police. The Nebraska State Patrol crime laboratory tested the bottle and found traces of propoxyphene, a Schedule IV controlled substance, more commonly known as Darvocet or Darvon. A Nebraska State Patrol forensic scientist, who examined and tested the prescription bottle, testified that the prescription label on the bottle indicated that the prescription was for Alfredson for citalopram hydrobromide, which is not a controlled substance. The forensic scientist further testified that she was unable to either confirm or deny a presence of cocaine in the sample taken from the prescription bottle.
Alfredson testified that he did not dispute that he had engaged in sexual intercourse with the victim, but instead testified that the sexual intercourse was consensual and that he did not prevent her from leaving the apartment. Alfredson indicated that the prescription bottle contained an antidepressant called Celexa or Lexapro which he took every morning and that the bottle did not contain cocaine as the victim had alleged or propoxyphene as the forensic scientist had indicated. Alfredson testified that the two engaged in sexual intercourse in the living room of the apartment and that the victim left his apartment before 3 a.m.
After hearing all of the evidence, the jury convicted Alfredson of first degree sexual assault and second degree false imprisonment. At sentencing, the district court determined that Alfredson was subject to the lifetime registration requirements of the Nebraska Sex Offender Registration Act (SORA). The district court also determined that Alfredson had committed an "aggravated offense" which further subjected him to lifetime community supervision pursuant to Neb. Rev. Stat. § 83-174.03 (Reissue 2008). Alfredson has timely appealed his convictions and sentences.
Alfredson assigns, rephrased and consolidated, the following assignments of error: (1) The district court erroneously denied his Batson challenge made during jury selection; (2) SORA is unconstitutional in that the lifetime community supervision requirements are cruel and unusual punishments; (3) the district court erred by failing to submit to the jury the "aggravated offense" determination, pursuant to § 83-174.03; (4) the sentences imposed were excessive; and (5) he received ineffective assistance of counsel in 14 separate instances, in violation of the U.S. and Nebraska Constitutions, and only a portion of those can be determined without a further evidentiary hearing.
Before addressing Alfredson's assignments of error, we find it necessary to address a portion of his brief entitled "C. Other Evidence." In this section of the brief, Alfredson sets forth the following statement:
Brief for appellant at 16.
Any such evidence should not be included in a party's brief or in their arguments to this court and, as such, will not be considered by this court. See, Coates v. First Mid-American Fin. Co., 263 Neb. 619, 641 N.W.2d 398 (2002); In re Interest of Marcus W. et al., 11 Neb.App. 313, 649 N.W.2d 899 (2002) (bill of exceptions is only vehicle for bringing evidence before appellate court; evidence which is not made part of bill of exceptions may not be considered).
Alfredson argues that the State improperly exercised a peremptory challenge to remove a juror, W.S., solely because of his race.
An appellate court will review de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). The trial court's factual determinations whether an attorney's race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was purposefully discriminatory will be reviewed by an appellate court for clear error. Id.
The Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986); State v. Thorpe, supra. The evaluation of whether a party has used peremptory challenges in a racially discriminatory manner is a three-step process. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L. Ed. 2d 824 (2006); State v. Thorpe, supra. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor has exercised peremptory challenges because of race. State v. Thorpe, supra. Second, if the defendant makes the requisite showing, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. Third, the trial court then determines whether the defendant has carried his or her burden of proving purposeful discrimination. Id. The third step requires the court to evaluate the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id.
Although the prosecutor must present a comprehensible reason, the second step of the analysis does not demand an explanation that is persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L. Ed. 2d 395 (1991); State v. Thorpe, supra.
The juror strike at issue in this case is the State's first strike for W.S., the only self-identified African-American on the panel. During voir dire, W.S. specifically explained that Alfredson was a runner at his wife's law firm (the same law firm that the victim also worked at) and that W.S. had known about the situation involving Alfredson and the victim from other attorneys at the firm. W.S. indicated that he was also aware of more specific information about the case than what had been contained in the information read to the jury. W.S. further indicated that another witness in the case was the daughter of a close family friend.
Alfredson argued to the trial court that he was also African-American and that the State had moved to strike the juror upon racially motivated grounds. The State argued that W.S.' wife was an attorney at the law firm where Alfredson had been employed and where the victim was still employed, that W.S. had heard information about the case as it had circulated around the firm, and that W.S. also knew other witnesses who would testify. Furthermore, the State argued that W.S.' presence was extremely uncomfortable for the victim because she still worked at the law firm. The trial court determined that the strike was not racially motivated and overruled Alfredson's challenge.
Based upon the record, we conclude that the State's articulated reasons for striking W.S. were race neutral and that thus, the trial court did not clearly err in determining the State's move to strike W.S. was not racially motivated. This assignment of error is without merit.
Alfredson argues that SORA is unconstitutional and that the lifetime community supervision requirements are cruel and unusual punishments.
The Nebraska Court of Appeals cannot determine the constitutionality of a statute, yet when necessary to a decision in the case before it, the court does have jurisdiction to determine whether a constitutional question has been properly raised. State v. Doyle, 18 Neb.App. 495, 787 N.W.2d 254 (2010); Clark v. Tyrrell, 16 Neb.App. 692, 750 N.W.2d 364 (2008). The Nebraska Supreme Court has held that the Court of Appeals has jurisdiction to determine, in limited circumstances, whether the constitutionality of a statute is implicated. See State v. Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007). To properly raise a challenge to the constitutionality of a statute, a litigant is required to strictly comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2008) and to properly raise and preserve the issue before the trial court. State v. Doyle, supra; Clark v. Tyrrell, supra.
It is clear from the record that Alfredson did not comply with § 2-109(E), as he did not raise any question about the constitutionality of the statute before the trial court. Furthermore, even if Alfredson had complied with the proper procedural requirements, the Nebraska Supreme Court has consistently held that the provisions of SORA are not unconstitutional. See, Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004); Welvaert v. Nebraska State Patrol, 268 Neb. 400, 638 N.W.2d 357 (2004); State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
Also, within this assignment of error, Alfredson contends that the lifetime community supervision provision of § 83-174.03 violates the 8th Amendment's prohibition against cruel and unusual punishment. However, Alfredson's "argument" on this issue merely consists of a restatement of the assigned error and, therefore, does not constitute the required argument in support of the assigned error. See, Slansky v. Nebraska State Patrol, supra; State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003).
Alfredson argues that he was unconstitutionally denied a jury determination of the elements necessary to enhance his offense to an "aggravated offense" when the district court found that he had committed an aggravated offense making him subject to lifetime community supervision pursuant to § 83-174.03. The district court specifically determined:
Where a court errs in failing to require the jury to decide a factual question pertaining only to the enhancement of the sentence, not the determination of guilt, the appropriate harmless error standard of review is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the existence of the sentencing enhancement factor. See State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009).
The offenses which Alfredson was convicted of were committed on April 5, 2009. At that time, a convicted sex offender became subject to lifetime community supervision following either completion of a term of incarceration or release from civil commitment in three separate circumstances:
§ 83-174.03(1). Thereafter, the Legislature amended the statute, removing "section 29-4005" from subsection (c) and replacing it with Neb. Rev. Stat. § 29-4001.01 (Cum. Supp. 2010). See § 83-174.03(1)(c) (Cum. Supp. 2010). This amendment became effective on January 1, 2010, and is presumably the changes of which the district court refers to at Alfredson's sentencing hearing. Alfredson committed the offense of first degree sexual assault prior to the January 1, 2010, enactment of the amendments to § 83-174.03, and therefore, the amended statute cannot be applied to Alfredson's case.
Having determined which version of the statute properly applies to this case, we find that the Nebraska Supreme Court has thoroughly addressed the imposition of lifetime community supervision pursuant to § 83-174.03, prior to any amendments, in State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009). In Payan, the court held that lifetime community supervision was akin to parole and is, as a result, an additional form of punishment for certain sex offenders. The court also held that because lifetime community supervision is an additional form of punishment, a jury, rather than a trial court, must make a specific finding concerning the facts necessary to establish an "aggravated offense" where such facts are not specifically included in the elements of the offense of which the defendant is convicted. See id.
Alfredson's assignment of error as to whether the district court can undertake the aggravated offense determination without submission of the issue to a jury was recently raised again before this court in the case State v. Balvin, 18 Neb.App. 690, 791 N.W.2d 352 (2010). In that case, the defendant was charged with and convicted of first degree sexual assault and, at sentencing, the district court also made the aggravated offense determination without submission to the jury. This court determined that, pursuant to § 83-174.03 (Reissue 2008), while penetration was a fact specifically included as an element of first degree sexual assault, the use of force or the threat of serious violence was not included as an element of the offense. State v. Balvin, supra. The court concluded that, because the use of force or the threat of serious violence was not a fact specifically included as an element of the offense, the defendant was entitled to a jury determination of whether the offense included the use of force or threat of serious violence. Id.
In Alfredson's case, as in Balvin, the use of force or the threat of serious violence was not included as an element of first degree sexual assault. See § 28-319(1). Therefore, consistent with the holding of Payan, regarding the application of § 83-174.03, we find that Alfredson was entitled to a jury determination regarding whether the offense included the use of force or the threat of serious violence. Because the jury did not make such a determination, the district court erred in finding that Alfredson had committed an aggravated offense which subjected him to lifetime community supervision.
However, the district court's error in determining that Alfredson committed an aggravated offense may be harmless. See State v. Payan, supra. The appropriate harmless error standard in this circumstance is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the existence of the sentencing enhancement factor. Id.
Alfredson argues, even if the harmless error standard is applied, because the jury found him guilty of only second degree false imprisonment and not first degree false imprisonment as charged, that clearly the jury found that the victim was only subjected to restraint without legal authority and, thus, also could have concluded that the first degree sexual assault was committed without consent but without force or threat of serious violence.
As previously indicated, at the time of Alfredson's offense, § 83-174.03 defined aggravated offense pursuant to the definition set forth in Neb. Rev. Stat. § 29-4005 (Reissue 2008). Section 29-4005(4)(a) defines aggravated offense as "any registerable offense under section 29-4003 which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years." In this case, it is undisputed that the victim was over the age of 12 and section (ii) of the definition of aggravated offense does not apply.
At trial, the jury heard two very different material versions of what transpired in those early morning hours of April 5, 2009. The State presented evidence that the victim was threatened and physically and sexually assaulted by Alfredson. In Alfredson's defense, he claimed that he and the victim had consensual sexual intercourse. Based upon our review of this record, we find that any rational jury which convicted Alfredson of first degree sexual assault would have also concluded that it was committed through the use of force or the threat of serious violence. Therefore, we find that the district court's error of making the aggravated offense finding instead of submitting it to the jury was harmless.
Alfredson's next argument is that the district court abused its discretion by imposing excessive sentences.
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). Where a sentence imposed within the statutory limits is alleged to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
When 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 violence involved in the commission of the crime. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). But the appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
Alfredson was convicted of first degree sexual assault and sentenced to 15 to 20 years' imprisonment. First degree sexual assault is a Class II felony punishable by 1 to 50 years' imprisonment. § 28-319 and Neb. Rev. Stat. § 28-105 (Reissue 2008). Alfredson was also convicted of second degree false imprisonment and sentenced to 1 year's imprisonment. Second degree false imprisonment is a Class I misdemeanor punishable by not more than 1 year's imprisonment, a $1,000 fine, or both. Neb. Rev. Stat. §§ 28-315 and 28-106 (Reissue 2008). Both of Alfredson's sentences are within the statutory limits, but Alfredson argues that the district court nonetheless abused its discretion by ignoring the "jury's determination that the night in question did not involve terrorizing circumstances or the risk of serious bodily injury." Brief for appellant at 35.
Alfredson was 25 years old at the time of the presentence investigation report, which indicates that he had completed high school and, prior to the arrest in this case, was enrolled in college. Alfredson had also been enlisted with the U.S. Marine Corps, wherein he had been deployed to Iraq on three occasions. In 2006, he was honorably discharged. Alfredson's criminal history includes convictions for trespassing, driving under the influence (three times), attempted strangulation, third degree domestic assault, and assault. On the Level of Service/Case Management Inventory (LS/CMI), a risk assessment tool designed to determine the degree of risk the offender presents to the community, Alfredson scored in the medium risk range. However, on the Vermont Assessment for Sex Offender Risk (VASOR), Alfredson scored in the high risk range.
Based upon the record, we find that the district court did not abuse its discretion by sentencing Alfredson to terms of imprisonment which were within the statutory ranges. This assignment of error is without merit.
Finally, Alfredson sets forth numerous assignments of error claiming that he received ineffective assistance of trial counsel in violation of both the U.S. and Nebraska Constitutions. Alfredson contends that the following claims of ineffective assistance of counsel can be addressed at this time: failing to object to the victim's testimony regarding previous jail time and the testimony regarding cocaine ingestion by Alfredson, failing to move for a mistrial as a result of prosecutorial misconduct, and failing to challenge the constitutionality of SORA.
Alfredson also sets forth 10 additional claims, but alleges that these claims require an evidentiary hearing. Those claims involve allegations that trial counsel failed to conduct reasonable discovery interviews of Alfredson's neighborhood, contact various potential witnesses, investigate Alfredson's telephone records, follow up with the police investigation and evidence, adequately cross-examine the victim, adequately examine Alfredson on direct examination, provide sufficient advice regarding plea negotiations, provide an adequate defense by refuting Alfredson's intoxication or impairment, challenge the admissibility of the DNA results, provide an adequate closing statement, and challenge the district court's findings at the sentencing hearing.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). The two prongs of this test, deficient performance and prejudice, may be addressed in either order. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). Counsel's performance is deficient if counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area. State v. Sandoval, supra. In order to show prejudice as an element of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. McGhee, supra.
A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal; the determining factor is whether the record is sufficient to adequately review the question. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). When the issue of ineffective assistance of counsel has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. See State v. McDaniel, 17 Neb.App. 725, 771 N.W.2d 173 (2009).
Because Alfredson has different counsel in this appeal from trial counsel, he can make a claim for ineffective assistance of trial counsel on direct appeal. See State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007) (where appellate counsel is different from trial counsel, defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to defendant or is apparent from record, or issue will be procedurally barred from postconviction review).
Having carefully reviewed each of Alfredson's claims of ineffective assistance of counsel, those which he argues can be disposed of on direct appeal and those which will require further evidentiary hearings, we find that the record is insufficient to address any of these claims on direct appeal. There is nothing in the record which discloses or provides any insight into trial counsel's reasons for the actions taken prior to and/or during the pendency of the trial. Therefore, we decline to address these claims on direct appeal. See State v. McDaniel, supra.
Upon our review, we conclude that the district court erred in making the aggravated offense finding instead of submitting it to the jury pursuant to the holding in State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009). However, we find that error to be harmless as the record demonstrates that, beyond a reasonable doubt, a rational jury would have found the existence of the sentencing enhancement factor.
As to Alfredson's numerous claims of ineffective assistance of counsel, we find that the record is insufficient to review any of those claims. Finally, we find that there is no merit to any of Alfredson's remaining assignments of error and affirm Alfredson's convictions and sentences.
AFFIRMED.
