State v. Abejide, 293 Neb. 687

Background

Defendant Abejide was tried by jury for attempted first-degree sexual assault and terroristic threats based on an alley incident where the victim testified he pulled her against a wall, pulled down both their pants, choked her, and threatened to "knock [her] out." A police officer arrived and saw the defendant with the victim and her pants down.
The jury convicted Abejide on both counts; the court later found him a habitual criminal based on three prior convictions (including two SORA violations) that each carried at least 1 year imprisonment.
At trial the court refused three defense proffered jury instructions: (1) treating attempted third-degree sexual assault as a lesser-included offense of attempted first-degree sexual assault; (2) requiring jury unanimity as to whether terroristic threats were intentional or reckless; and (3) an instruction permitting consideration of intoxication (except involuntary intoxication) in mens rea, citing Neb. Rev. Stat. § 29-122.
Abejide moved no further evidence after the State rested and did not present evidence of involuntary intoxication; his counsel raised objections to the jury instructions at trial and on appeal alleged additional ineffective assistance claims.
The district court sentenced Abejide under the habitual criminal statute to 10–20 years for attempted first-degree sexual assault and 10–10 years for terroristic threats, to run consecutively.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Abejide)	Held
Whether attempted 3rd-degree sexual assault is a lesser-included offense of attempted 1st-degree sexual assault	Court should follow statutory elements approach; prior precedent supports that it is not lesser-included	Abejide argued attempted 3rd-degree is a lesser-included offense and jury should have been instructed accordingly	Not a lesser-included offense; refusal to give instruction was correct (follow Kibbee and Schmidt)
Whether jury must be unanimous as to intentional vs reckless mens rea for terroristic threats	Single statutory offense can be committed in different ways; unanimity not required as to theory	Abejide requested unanimity as to which state of mind jurors found	Unanimity as to theory not required; instruction given was proper
Whether court erred by refusing intoxication instruction (and constitutionality of § 29-122)	State: § 29-122 bars consideration of voluntary intoxication; defendant bears burden to prove involuntary intoxication by clear and convincing evidence	Abejide argued statute shifts burden and violates due process; requested instruction to consider intoxication evidence for mens rea	No error: statute is a permissible legislative definition of mens rea scope (Egelhoff); defendant produced no evidence of involuntary intoxication, so refusal was proper
Sufficiency of evidence for convictions	Evidence (victim testimony and officer observation) was sufficient	Abejide argued victim testimony inconsistent and insufficient	Evidence sufficient when viewed in light most favorable to State; credibility for jury to decide

Key Cases Cited

State v. Kibbee, 284 Neb. 72 (Neb. 2012) (analyzing whether third-degree sexual assault is a lesser-included offense of first-degree sexual assault)
State v. Schmidt, 5 Neb. App. 653 (Neb. Ct. App. 1997) (court of appeals holding attempted third-degree sexual assault not lesser-included of attempted first-degree)
Montana v. Egelhoff, 518 U.S. 37 (U.S. 1996) (upholding state statutory limitation on use of voluntary intoxication to negate mens rea)
Patterson v. New York, 432 U.S. 197 (U.S. 1977) (holding constitutionally permissible to place burden of persuasion on defendant for affirmative defenses)
State v. Ramirez, 274 Neb. 873 (Neb. 2008) (distinguishing triggering felonies from prior convictions for purposes of habitual criminal statute)
State v. Chapman, 205 Neb. 368 (Neb. 1980) (discussed and limited by the court regarding prior enhanced offenses and habitual criminal statute)
State v. Parker, 221 Neb. 570 (Neb. 1986) (unanimity not required where offense may be proved by alternative, consistent means)
State v. Custer, 292 Neb. 88 (Neb. 2015) (standard for reviewing sufficiency of evidence in criminal cases)