State v. Abligo, 312 Neb. 74

Background

Defendant Komla Abligo was charged with first-degree sexual assault after A.A. reported being penetrated in the early morning of March 6, 2019, following a night of drinking at an apartment shared by Abligo and another roommate.
A.A. reported the assault to a hospital SANE nurse five days later; the nurse testified about A.A.’s account and prepared a report. A.A. also provided police with screenshots of text messages between her and Abligo.
Abligo was interviewed by police and admitted to penetrating A.A., claiming he was intoxicated and mistakenly believed she was another partner (Bils).
Before trial Abligo sought to admit three Snapchat videos of A.A. (proffered under Nebraska’s rape-shield statute) and to exclude or challenge the text-message evidence and the SANE statements; the court excluded the videos, reserved ruling on texts until trial, and admitted the SANE testimony and texts at trial.
The jury convicted Abligo; he was sentenced to 4–10 years’ imprisonment. Abligo appealed, arguing (inter alia) erroneous exclusion of the videos, denial of a continuance, improper admission of texts and SANE statements, and an excessive sentence. The Nebraska Supreme Court affirmed.

Issues

Issue	State's Argument	Abligo's Argument	Held
Admissibility of Snapchat videos under § 27-412 / relevancy	Videos irrelevant or prejudicial; Abligo failed to comply with § 27-412 notice	Videos show flirtatious/sexual behavior relevant to consent and credibility	Videos inadmissible: not sexual under § 27-412, or if relevant notice noncompliant and probative value outweighed by prejudice/confusion
Denial of continuance for late disclosure of Bils’s statements	Late disclosure promptly cured: State disclosed immediately and produced Bils for deposition before trial	Late disclosure prejudiced defense; needed time to prepare	Denial not an abuse of discretion; deposition and prior notice of witnesses cured prejudice
Authentication/hearsay of text-message screenshots	Texts authenticated by A.A.’s testimony and Abligo’s statements in his police interview; Abligo’s texts are party admissions	State failed to properly authenticate; A.A.’s texts are hearsay	Admission proper: foundation satisfied; Abligo’s texts are party statements; A.A.’s texts used for context under limiting instruction
Admissibility of SANE nurse testimony/report (medical hearsay)	Statements made for medical diagnosis or treatment and used in exam; nurse relied on them	Statements not made in contemplation of treatment due to 5-day delay; statements about fault inadmissible hearsay	Court did not clearly err finding § 27-803(3) applicable; any error harmless because evidence largely cumulative of A.A.’s testimony
Excessive sentence / failure to consider mitigation	Sentence within statutory limits; court considered presentence report and mitigating factors	Court failed to tailor sentence to defendant’s circumstances	No abuse of discretion; court considered required factors and did not impose excessive sentence

Key Cases Cited

State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (Neb. 2016) (standards for foundation and authentication of text messages)
State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (Neb. 2012) (standards for admission of statements made for medical diagnosis or treatment)
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (Neb. 2018) (interpretation of § 27-412 rape-shield limits)
State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (Neb. 2019) (relevance and § 27-401/27-403 principles; low bar for probative value)
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (Neb. 2019) (sentencing factors and appellate review of discretionary sentences)
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (Neb. 2021) (harmless-error analysis for erroneously admitted evidence)