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STATE V. ABLIG

Cite as 312 Neb. 74

State of Nebraska, appellee, v. 

Komla Abligo , appellant.

___ N.W.2d ___

Filed July 29, 2022. No. S-21-457.

1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

2. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the 

discretion of the trial court and will not be disturbed on appeal absent 

an abuse of discretion.

3. 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.

4. Judgments: Words and Phrases. 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.

5. Sexual Assault: Evidence. Nebraska’s rape shield statute is not meant 

to prevent defendants from presenting relevant evidence, but to deprive 

them of the opportunity to harass and humiliate the complaining witness 

and divert the jury’s attention to irrelevant matters.

6. Evidence: Proof. The bar for establishing evidentiary relevance is not 

a high one and requires only the probative value of the evidence to be 

something more than nothing.

7. Evidence: Words and Phrases. Unfair prejudice means an undue tend

ency to suggest a decision based on an improper basis.

8. Rules of Evidence: Testimony: Proof. Generally, the foundation for the 

admissibility of text messages has two components: (1) whether the text 

messages were accurately transcribed and (2) who actually sent the text 

messages. Testimony concerning context or familiarity with the manner 

of communication of the purported sender is sufficient foundation for 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/19/2022 08:08 AM CDT
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the identity of the sender and is typically in combination with testimony 

that the cell phone number belonged to or was regularly utilized by the 

alleged sender. The proponent of the text messages is not required to 

conclusively prove who authored the messages.

9. Rules of Evidence: Hearsay: Appeal and Error. Whether a statement was both taken and given in contemplation of medical diagnosis 

or treatment is a factual finding made by the trial court in determining 

the admissibility of the evidence, which an appellate court reviews for 

clear error.

10. Sentences. 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.

Appeal from the District Court for Douglas County: James 

M. Masteller, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, Korey T. 

Taylor, Tamara T. Mosby, and Hilary Burrows, Senior Certified 

Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

On April 16, 2019, the State charged Komla Abligo by information with one count of first degree sexual assault, a Class II 

felony. The State alleged that Abligo sexually assaulted A.A. 

after a night of drinking alcohol and partying with Abligo’s 

roommate, Robert Capers, and Angel Bils.

After multiple delays, a jury trial was held in the matter on 

March 8, 2021, after which the jury found Abligo guilty of 

first degree sexual assault. The district court sentenced Abligo 

to 4 to 10 years’ imprisonment, with 87 days’ credit for time 

served. Abligo appealed, and we moved this case to our docket. 

We affirm.
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I. FACTUAL BACKGROUND

On March 11, 2019, A.A. told her former foster mother, 

with whom she still had a relationship, that she had been sex

ually assaulted several days prior. Upon learning of the alleged 

assault, A.A.’s foster mother took her to a hospital for medical 

care, and law enforcement was notified. Officer Mark Magill 

was assigned to investigate the incident and was dispatched to 

the hospital.

At the hospital, nurse Carla Idrees performed a sexual 

assault nurse examination (SANE exam). A.A. explained to 

both Idrees and Magill the circumstances surrounding the 

assault, stating that it occurred on the morning of March 6, 

2019, after she had spent the night drinking at Abligo’s and 

Capers’ apartment; a friend, Bils, was also present that night. 

While recounting the events, A.A. identified Abligo as her 

assailant. Later, A.A. provided to Magill screenshots of text 

messages from her phone, purportedly showing an exchange 

between herself and Abligo discussing the incident.

On March 16, 2019, Magill interviewed Abligo at the police 

station. After waiving his Miranda rights, Abligo admitted 

that he had sex with A.A., but claimed that he and A.A. were 

both still drunk that morning. Abligo also admitted that he 

had believed A.A. was Bils, with whom Abligo had a sexual 

relationship, and stated that he was not interested in A.A. in a 

sexual manner. Following this interview, Abligo was arrested. 

In April 2019, the State filed an information charging Abligo 

with one count of sexual assault in the first degree, a Class II 

felony.

A jury trial was originally scheduled for October 2019, 

but was continued to March 30, 2020, after the court granted 

Abligo’s oral motion to continue. Abligo requested a second 

continuance, and the trial was continued to July 2020. A series 

of continuances then followed, many of which were related 

to the COVID-19 pandemic and the district court’s inability 

to hold jury trials. Abligo’s trial was eventually scheduled for 

March 8, 2021.
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Prior to trial, the parties raised several evidentiary issues 

regarding the admissibility of certain video recordings, as well 

as the screenshots of text messages between A.A. and Abligo 

that had been provided to Magill. Abligo sought to admit 

three video recordings, each collected from the social media 

platform known as Snapchat, pursuant to Neb. Rev. Stat. 

§ 27-412 (Reissue 2016). Each video was filmed by Abligo 

and depicted A.A. either posing for the camera or doing various activities while being recorded. Abligo sought to exclude 

the text messages on grounds of relevance, authentication, 

and hearsay.

At an evidentiary hearing, the State argued that the videos 

should be excluded, because Abligo failed to provide the requisite 15-day written notice of his intention to admit § 27-412 

evidence, and that the videos were irrelevant, had no probative 

value, and would be unfairly prejudicial. Abligo responded 

that the videos were admissible under § 27-412 and relevant 

to the issue of A.A.’s consent and that if the videos did not 

depict sexual behavior within the scope of § 27-412, the videos 

were relevant to the issue of A.A.’s credibility. As for the text 

messages, Abligo argued that the State would be unable to 

authenticate the messages and lay the required foundation for 

their admission.

The district court ruled that the Snapchat videos were inadmissible, because Abligo had not established good cause for 

noncompliance with the statutory 15-day notice provision of 

§ 27-412 and, alternatively, the videos did not depict sexual 

behavior; they had little, if any, relevance to the issues; and 

their probative value was outweighed by the danger of unfair 

prejudice, confusion, or misleading of the jury. The district 

court ruled that the admissibility of the text messages would be 

addressed at trial in the context of the evidence.

On Friday, March 5, 2021, Abligo moved to continue the 

trial, scheduled to start March 8. Abligo alleged that the State 

had just revealed Bils planned to testify regarding statements 

Abligo had made to her on the morning of the alleged assault 
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and that counsel needed additional time to consider the new 

information and prepare for trial. The State objected to a 

continuance, stating that Bils had been an endorsed witness 

since 2019 and that the State had repeatedly indicated that it 

intended to call Bils as a witness.

The district court declined to rule on Abligo’s motion to 

continue and requested that a written motion and affidavit be 

submitted to the court. Abligo additionally moved the court to 

exclude Bils as a witness, citing the State’s failure to disclose 

potentially exculpatory evidence to defense counsel in a timely 

manner. The State agreed to make Bils available for a deposition before the trial commenced, in lieu of excluding her as a 

witness. The parties conducted a deposition of Bils over the 

weekend, after which Abligo filed a written motion to continue 

with a supporting affidavit.

On the morning of trial, the court heard from both parties 

and overruled Abligo’s motion to continue. The court reasoned 

that there was no prejudice to Abligo from the late disclosure 

of Bils’ information because Bils would make a limited statement and because she was subjected to a deposition. The court 

then commenced a jury trial.

At trial, the State called A.A., Bils, Idrees, and Magill to 

testify. A.A. testified that on March 5, 2019, she and Bils had 

gone over to the apartment, which Abligo and Capers shared, 

to “hang out” as a group. At that time, A.A. was in a sexual 

relationship with Capers and Bils was in a sexual relationship 

with Abligo, but all four individuals were friends. A.A. had 

only met Capers and Abligo 6 months prior to March 2019, but 

had known Bils for approximately 2 years and had previously 

worked with Bils as a cocktail waitress.

A.A. said that the four had spent the night playing games 

and drinking. According to A.A., all four individuals were 

inebriated to some degree by the end of the night, but not 

“black-out drunk.” A.A. said that she went to bed with Capers 

in his room at around 2:30 a.m. and that Bils went to bed 

with Abligo in his room sometime after that. A.A. said that 
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Capers had set his alarm for 5 a.m., the time he had to leave, 

and then they both “passed out.” A.A. said that she went to 

bed naked.

The next thing that A.A. could remember was adjusting her 

sleeping position and seeing someone in bed next to her, who 

she assumed was Capers. The person started touching her, 

trying to initiate sex. A.A. was still partially asleep. Thinking 

the person touching her was Capers, A.A. put her hand up to 

stop him and said, “‘No, I’m not in the mood,’” and “‘No, 

baby, no.’” A.A. also said that she moved her body around to 

stop the person from touching her and that because the person 

kept touching her naked bottom, she rolled onto her back. The 

person then climbed on top of her and penetrated her. At that 

point, A.A. said her “brain [started] telling [her to] wake up, 

something [was] not right,” but that she was not fully awake. 

A.A. felt the person with her hand, and it did not feel like 

Capers. She then fully awoke, finding that it was Abligo on top 

of her. A.A. says that she kicked him off, got out of the bed, 

and screamed at him. Abligo was naked and stood in the room 

for a bit before getting in the shower. A.A. testified that she 

never consented to having sex with Abligo.

At some point, Bils heard A.A. crying and came out of the 

other room to ask what was going on. A.A. told Bils what had 

happened, then retrieved her clothes and got dressed. A.A. 

called Capers and then called her brother to come pick her up. 

While waiting for her brother, A.A. spoke to Bils, and after 

some time, she went back into the apartment. Abligo tried to 

speak with A.A., but A.A. said that she began to yell at him. 

According to A.A., Abligo “kept saying [that] he wasn’t in his 

right head” and that A.A. was “making it a bigger deal” than it 

was. A.A. thereafter left with her brother.

A.A. further testified that prior to the incident, she had 

Abligo’s number saved in her phone. About 3 hours after the 

incident, Abligo texted A.A. and asked her to meet him for 

dinner and to talk about what happened. A.A. refused, and in 

the ensuing text conversation, A.A. accused Abligo of raping 
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her. Abligo responded with various apologies and explanations 

for his behavior.

Over Abligo’s renewed objections, the screenshots of A.A.’s 

text messages were received into evidence. A.A. testified that 

these messages had been saved by taking a screenshot of 

her phone and that she had sent the screenshots to Magill in 

his investigation.

Bils was called to testify next, and her testimony was similar to A.A.’s. Bils testified that A.A.’s crying woke her up that 

morning and that she had heard A.A. yelling, “‘I was asleep’” 

and “[t]hat’s not me saying yes” from Capers’ bedroom. Bils 

said she went into Capers’ bedroom and found A.A. and 

Abligo, both naked. Abligo’s penis was erect, and A.A. was 

hysterical. According to Bils, Abligo had said that “it wasn’t 

like that” and that he was “trying to die the situation down,” 

but that A.A. was “being dramatic” and “wanted to” have sex. 

Bils said that Abligo appeared nonchalant about the incident, 

and she also recalled that Abligo had flirted with A.A. the night 

before, but that A.A. did not flirt with Abligo.

Also testifying was Idrees, the nurse who had seen A.A. 

at the hospital and who had conducted a SANE exam for 

A.A. Idrees testified to her education, the typical process and 

procedures involved in a SANE exam, and the details of her 

SANE exam of A.A. Idrees stated that a vaginal or pelvic 

examination to obtain forensic evidence was not conducted 

due to the 5-day delay between the alleged assault and the 

date of A.A.’s SANE exam. Idrees’ testimony included her 

recitation of statements made by A.A. during the SANE exam. 

Abligo objected to this portion of Idrees’ testimony on hearsay 

grounds, and the district court overruled Abligo’s objection 

after it concluded that such statements either were not hearsay 

or were a statement of the declarant’s existing state of mind. 

Idrees further testified that as a SANE exam nurse, she works 

closely with law enforcement to collect information and forensic evidence that may be later used by police or prosecutors. 

Idrees stated that a SANE exam is meant to collect evidence 
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but does not prevent a victim from leaving out details, exaggerating the events, or misrepresenting information.

Finally, the State called Magill to testify regarding his 

investigation, including his interview of Abligo at the police 

station. During Magill’s testimony, an audio recording of the 

interview was received into evidence and played for the jury. 

The audio recording revealed that during the interview, Abligo 

made various inculpatory statements, including an admission 

that he penetrated A.A. on March 6, 2019, and that he had 

texted her afterward to talk about what happened.

Abligo did not call any witnesses to testify on his behalf. On 

March 11, 2021, the jury returned a unanimous guilty verdict. 

The district court thereafter adjudged Abligo guilty of sexual 

assault in the first degree, a Class II felony. The district court 

ordered a presentence report to be conducted and prepared 

prior to sentencing.

At a sentencing hearing on May 10, 2021, the district court 

heard from the State, defense counsel, and Abligo himself. 

A.A. was present and read her victim impact statement, which 

was made part of the presentence report. The court then sentenced Abligo to 4 to 10 years’ imprisonment, with 87 days’ 

credit for time served.

Abligo appealed. We thereafter moved this case to our 

docket.

II. ASSIGNMENTS OF ERROR

On appeal, Abligo assigns that the district court abused 

its discretion (1) by finding Snapchat videos of A.A. inadmissible; (2) by denying Abligo’s motion to continue; (3) in 

admitting the text messages purportedly between Abligo and 

A.A. because the State failed to properly authenticate the messages, which included inadmissible hearsay; (4) by admitting 

Idrees’ testimony and medical report, which were both inadmissible hearsay; and (5) by imposing an excessive sentence 

upon Abligo.
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III. STANDARD OF REVIEW

[1] Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. 1

[2] A decision whether to grant a continuance in a criminal 

case is within the discretion of the trial court and will not be 

disturbed on appeal absent an abuse of discretion. 2

[3,4] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. 3 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. 4

IV. ANALYSIS

1. Snapchat Videos

In his first assignment of error, Abligo assigns that the district court abused its discretion by finding the Snapchat videos 

inadmissible. Abligo argues that the videos should have been 

admitted pursuant to Neb. Rev. Stat. §§ 27-401 and 27-403 

(Reissue 2016), because they were each relevant to A.A.’s 

credibility, or pursuant to § 27-412, as specific instances of 

A.A.’s sexual behavior, for purposes of proving A.A.’s consent.

(a) Applicability of § 27-412

Abligo argues that the videos were admissible under 

§ 27-412, otherwise known as Nebraska’s rape shield statute, 

because they “depicted [A.A.] in a lingerie top . . . and dancing in front of Abligo in a sexual manner.” 5 Abligo asserts the 

1 State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

2 State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).

3 State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).

4 State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).

5 Brief for appellant at 21.
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videos would help determine the issue of A.A.’s consent by 

showing A.A. had flirted with Abligo in the past.

[5] Under § 27-412, evidence offered to prove a victim’s 

past sexual behavior or sexual predisposition is inadmissible 

unless an exception applies. One exception allows the admission of evidence of specific instances of sexual behavior of 

the victim to prove consent, if it is first established that such 

behavior is similar to the behavior involved in the case and 

tends to establish a pattern of behavior of the victim relevant to 

the issue of consent. 6 Nebraska’s rape shield statute, § 27-412, 

is not meant to prevent defendants from presenting relevant 

evidence, but to deprive them of the opportunity to harass and 

humiliate the complaining witness and divert the jury’s attention to irrelevant matters. 7

The first video is approximately 9 seconds long and depicts 

A.A. wearing a pink tank top, white shorts, a silk robe, and 

sunglasses. A.A. briefly poses for the camera by looking over 

her shoulder while lowering the sunglasses, then asks, “Oh, 

you’re recording me?” and twirls once to move off camera. 

The second video is approximately 5 seconds long and first 

depicts Capers’ pouring a drink in his kitchen. The camera pans 

to the right, where A.A. is standing in jeans and a cardigan. 

Upon seeing the camera pointed at her, A.A. poses for a picture 

by turning her body slightly to the side while looking toward 

the camera. A.A. then releases her pose and laughs loudly. The 

third video is approximately 12 seconds long and depicts A.A. 

and Bils performing the splits. Both women laugh, and A.A. 

rolls from her position on the floor onto her knees, causing her 

to face away from the camera in the process, while Bils moves 

in the opposite direction and stands up on one leg before moving off camera.

Contrary to Abligo’s assertions, these videos do not depict 

A.A. “dancing in front of Abligo in a sexual manner,” nor do 

6 § 27-412(2)(a)(ii).

7 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
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any of the videos depict A.A. dancing in “lingerie.” Indeed, 

A.A. does not exhibit any sexual behavior in the videos: she 

is merely spending time with friends, laughing and playing 

games. Even if this type of behavior qualified as “sexual 

behavior” for purposes of § 27-412, it is unclear how such evidence would have constituted any pattern of behavior relevant 

to whether A.A. consented to sexual contact with Abligo on the 

morning of March 6, 2019. Under § 27-412, the videos would 

not be admissible.

Even if § 27-412 did apply, Abligo did not comply with 

the 15-day notice requirement set forth in subsection (3)(a). 

Nor did good cause exist to excuse Abligo’s noncompliance, 

because even if the State did not timely provide witness contact information to Abligo, Abligo was the one who filmed 

the videos and hence knew what they would be used for in 

terms of proving or disproving his claims regarding the alleged 

assault.

(b) Relevance and § 27-403

Conversely, Abligo argues that the videos, if they did not 

depict sexual behavior, were admissible under § 27-403. 

According to Abligo, the videos would attack A.A.’s credibility 

by proving that (1) A.A. was not “new” to drinking, (2) she 

was lying about her expressed comfort level around Abligo, 

and (3) A.A. had a flirtatious relationship with Abligo, indicating that she was interested in a sexual relationship with Abligo, 

which she now wanted to hide in order to protect her relationship with Capers.

[6,7] All relevant evidence is admissible except as otherwise 

provided by law, and evidence is relevant if it has any tend

ency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable than it would be without the evidence. 8 The bar for establishing evidentiary relevance is not a high one and requires 

only the probative value of the evidence to be something more 

8 See § 27-401 and Neb. Rev. Stat. § 27-402 (Reissue 2016).
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than nothing. 9 Although 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. 10 Unfair prejudice means an undue tendency to suggest a decision based on 

an improper basis. 11

At trial, and again in his briefs on appeal, Abligo asserts that 

A.A. consented to intercourse on March 6, 2019. However, in 

his interview with Magill at the police station on March 16, 

prior to being arrested, and also in his interview after conviction for purposes of a presentence investigation in May 2021, 

Abligo stated that he “was merely confused and ended up 

in the wrong bedroom with the wrong person.” Essentially, 

Abligo stated that he and A.A. were both drunk from the night 

before and that when Abligo initiated sex and penetrated A.A., 

he believed that he was initiating sex with Bils, with whom he 

had an ongoing sexual relationship.

If we believe Abligo’s story that he was merely confused 

about A.A.’s identity on the morning of March 6, 2019, then 

these videos are irrelevant as they would not prove or disprove 

any element or issue of the case, even if they did depict A.A.’s 

flirting with Abligo. If we assess the videos under the defense 

proffered at trial—/that A.A. consented to sex and thereafter 

changed her story for some other motive, such as to cover 

up an infidelity as we explain below—these videos either are 

irrelevant or would have little probative value, and the videos 

would be substantially outweighed by the danger of unfair 

prejudice or confusion of the issues.

In one of the videos, A.A. can be seen in the same room 

where alcohol was being served, which Abligo argues can 

prove that A.A. was not “new to drinking” around the time 

9 See State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).

10 § 27-403.

11 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019); State v. Brown, supra

note 9.
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of the incident in March 2019, despite her testimony to the 

contrary. But the videos are undated, and Abligo presented no 

evidence that the videos were captured either well before or 

immediately prior to the incident, and thus, they cannot establish any timeline of A.A.’s drinking behaviors. Further, the 

videos cannot establish how much A.A. may or may not have 

been drinking, or whether such amount was typical consumption for A.A. or atypical. Thus, the videos would confuse the 

issues if used for this purpose and might lead to a trial within 

a trial on the topic of whether A.A. was indeed “new to drinking,” even though the answer does not impact the underlying 

issue of A.A.’s consent.

As for Abligo’s argument that the videos show A.A. had 

flirted with Abligo and now sought to cover up their flirtatious 

relationship to hide an infidelity and protect her relationship 

with Capers: Capers is on camera in one of the videos and 

would already be aware of any flirtatious relationship between 

A.A. and Abligo, having witnessed these actions firsthand. 

Thus, the videos did not prove any willingness of A.A. to lie 

to protect her relationship with Capers. And although A.A. 

may have mentioned in her deposition being uncomfortable 

around Abligo, she did not testify to this statement at trial. 

Hence, the videos were not relevant to any impeachment on 

these issues.

The district court did not err in finding these videos inadmissible. Even if the videos did depict sexual behavior per 

§ 27-412, Abligo did not comply with the 15-day notice 

requirement and did not establish good cause for noncompliance. If the videos are instead assessed for their relevance, 

probative value, and prejudice, they are irrelevant to the underlying issue of consent and any probative value would be substantially outweighed by a danger of confusing the issues. This 

assignment of error is without merit.

2. Motion to Continue

In his second assignment of error, Abligo assigns that the 

district court abused its discretion by denying his motion to 
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continue, which was made on the Friday preceding a Monday 

trial. Abligo also asserts that the court erroneously determined that deposing Bils the weekend prior to trial cured the 

prejudice which arose from the State’s late disclosure of Bils’ 

contact information and late disclosure of statements Bils 

claimed that Abligo had made regarding the incident. Abligo 

also claimed that the State failed to disclose a working phone 

number for A.A.

Regarding contact information for A.A., the record indicates 

that Abligo inquired about a phone number to reach A.A. and 

that the State instead provided a working email address. The 

State clarified prior to trial that “[A.A.] is and has been very 

difficult to get ahold of. The only way we are able to communicate with her, due to phone issues, has been via email.” Thus, 

the State provided Abligo with the same contact information 

that it used to contact A.A.

Regarding Bils, the State had a pretrial phone call on March 

5, 2021, wherein Bils mentioned that on the morning of the 

incident after A.A. left the apartment, Abligo said something 

to the effect of, “[A.A.] wanted to have sex.” Bils informed 

the State of a few additional statements that Bils attributed 

to Abligo, which may have supported Abligo’s argument that 

A.A. consented to sex. The State immediately disclosed these 

statements to Abligo, and at a hearing held that same day, 

Abligo moved the court to continue trial based on this newly 

discovered evidence. Specifically, counsel for Abligo stated, “I 

believe that the state is calling . . . Bils for some information. 

I would just like for the state to give me contact information 

[and] for the Court to . . . make her available for deposition 

prior to her testimony.”

As indicated by the State, Bils, A.A., or any of the listed 

witnesses could have been deposed any time by Abligo. And 

Abligo certainly knew of each witness and had plenty of time 

to request depositions: The information filed April 16, 2019, 

listed A.A., Bils, Idrees, and Magill as witnesses; these individuals were endorsed as witnesses since the date of the first 
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scheduled trial, originally set for October 2019; and the State 

also repeatedly indicated that it intended to call all four individuals at trial. Although the late timing of Bils’ newly disclosed statements was “unfortunate” for all parties, as noted by 

the district court, the State provided the information to Abligo 

as soon as it learned of the information and made Bils available 

to be deposed on those statements prior to trial.

Based on this information, it was not an abuse of discretion 

for the district court to deny Abligo’s motion to continue. This 

assignment of error is without merit.

3. Text Messages

Next, Abligo assigns that the district court abused its discretion by admitting text messages purportedly between Abligo 

and A.A. regarding the incidents of March 6, 2019. Abligo 

argues that the State failed to provide foundation and did not 

properly authenticate the messages, which included inadmissible hearsay from A.A., and that the messages were unduly 

prejudicial.

[8] Generally, the foundation for the admissibility of text 

messages has two components: (1) whether the text messages 

were accurately transcribed and (2) who actually sent the text 

messages. 12 Testimony concerning context or familiarity with 

the manner of communication of the purported sender is sufficient foundation for the identity of the sender and is typically 

in combination with testimony that the cell phone number 

belonged to or was regularly utilized by the alleged sender. 13

The proponent of the text messages is not required to conclusively prove who authored the messages. 14

There can be no issue regarding whether the text messages 

were transcribed erroneously or inaccurately, because the messages were presented through a screenshot, a static copy of 

12 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

13 See id.

14 Id.
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the content visible on A.A.’s phone when she captured the 

images to share with Magill. As for the identity of the sender, 

A.A. testified that these images were from her phone, that 

the images showed text messages from herself to Abligo, and 

that Abligo was the other sender. A.A. testified that she and 

Abligo had previously texted from these numbers and in this 

same message thread. A.A.’s testimony concerning the context 

of the messages was that after the incident, Abligo texted her 

to ask if they could meet and talk about what happened, and 

he even offered that Bils could come along if A.A. wanted 

her there.

In addition to A.A.’s testimony, these same text messages 

were introduced by way of the interview between Magill and 

Abligo in March 2019, which was played for the jury after the 

recording was received into evidence. During the interview, 

Abligo informed Magill that he had texted A.A., and the two 

thereafter discussed Abligo’s messages to A.A. Approximately 

46 minutes into the interview, Magill asked Abligo if he talked 

to A.A. after the incident through text messages or a messaging service. Abligo replied in the affirmative and told Magill 

“it went, hey, I think we should get together and talk this out 

. . . . She wasn’t about it, and I apologized.” Magill then asked, 

“Did you tell [A.A.] you thought she was [Bils]?” Abligo said 

no, because he could tell A.A. “didn’t want to hear it.”

Abligo thereafter said he could not tell A.A. his side of 

the story because she would not let him talk, to which Magill 

replied, “well, it’s text messaging, you can type anything you 

want to regardless of whether someone interjects or not.” 

Abligo responded, “Well, you read that, it wouldn’t have mattered. You read those messages.”

Magill next read a few of the messages to Abligo, in which 

A.A. said “you got shit twisted, you understand what you did 

is considered rape right?” and asked, “at that point, why didn’t 

you try to defend yourself?” Abligo’s response was “because it 

wasn’t supposed to be rape.” Magill later asked Abligo, “Did 

you apologize to her for having sex with her when she didn’t 
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want to?” to which Abligo responded, “I was going to do that 

in person.”

Even if the text messages had not been authenticated by 

A.A. during her own testimony, this evidence would certainly 

be sufficient for authentication of the text messages. The text 

messages discussed match the information provided in the 

screenshots, and Abligo’s statements to Magill show that he 

recognized the text messages, show that he was responding 

to A.A., and explain why his responses did or did not include 

certain information.

As for Abligo’s argument that the text messages contained 

hearsay not within an exception, the text messages attributable 

to Abligo were his own statements offered against him, falling 

under the hearsay exception at Neb. Rev. Stat. § 27-801(4)(b)(i) 

(Reissue 2016) as statements of a party opponent. The statements within the text messages that were authored by A.A. 

were provided under a limiting instruction wherein the jury 

was told not to consider her text messages for the truth of the 

matter asserted, but instead to consider them “to assist . . . 

in understanding and assessing the texts of [Abligo].” Abligo 

also stated that the text messages were unfairly prejudicial, 

but does not explain why or give any supporting authority for 

this assertion.

Through A.A.’s testimony and the audio recording of 

Abligo’s interview with Magill, the State provided sufficient 

foundation showing that the text messages were authored by 

A.A. and Abligo. The messages were statements of a party 

opponent or, alternatively, were not offered to prove the truth 

of the matter asserted, and thus, they were not inadmissible 

hearsay. The district court did not abuse its discretion in ruling 

that these messages were admissible. This assignment of error 

is without merit.

4. SANE Exam Testimony and Report

In his fourth assignment of error, Abligo argues that the 

district court abused its discretion in admitting testimony by 
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Idrees and in admitting the medical report from the SANE 

exam Idrees performed on A.A., because both consisted of 

inadmissible hearsay. According to Abligo, A.A.’s statements 

to Idrees were not made in legitimate and reasonable contemplation of a medical diagnosis or treatment because the 

SANE exam occurred 5 days after the incident. Additionally, 

Abligo points out that statements related to fault are usually inadmissible. 15

[9] According to Neb. Rev. Stat. § 27-803(3) (Reissue 

2016), “[s]tatements made for purposes of medical diagnosis 

or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general 

character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are not excluded 

by the hearsay rule even though the declarant is available as 

a witness. Whether a statement was both taken and given in 

contemplation of medical diagnosis or treatment is a factual 

finding made by the trial court in determining the admissibility of the evidence, which an appellate court reviews for 

clear error. 16

Here, the district court did not clearly err in determining 

that A.A.’s statements were admissible under § 27-803(3). 

A.A. made the statements while at the hospital, during a SANE 

exam to check for injuries and prescribe treatment related to 

an alleged sexual assault, and Idrees testified that she relied on 

A.A.’s statements to decide the extent of the examination and 

for treatment planning. For example, Idrees testified that the 

SANE exam occurred approximately 5 days after the alleged 

assault, so a physical examination would likely not succeed in 

the collection of DNA evidence; however, if A.A. had complained of any bleeding or pelvic pain, Idrees may still have 

ordered a pelvic examination.

But an analysis of whether these statements were necessary 

for medical diagnosis and treatment is ultimately unnecessary. 

15 See State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).

16 See id.
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We have stated that the erroneous admission of evidence is 

harmless error and does not require reversal if the evidence 

is cumulative and other relevant evidence, properly admitted, 

supports the finding by the trier of fact. 17 Here, as admitted 

by Abligo, “the statements [Idrees] testified to at trial were 

essentially a recitation of [A.A.’s] own testimony.” 18 As such, 

any error which resulted from the admission of such statements would be harmless. This assignment of error is without merit.

5. Excessive Sentence

Finally, Abligo assigns as error that the district court abused 

its discretion in imposing an excessive sentence upon him. 

Abligo argues that the district court did not properly consider 

mitigating factors when it imposed a sentence of 4 to 10 years’ 

imprisonment and did not tailor the sentence to Abligo’s individual circumstances.

[10] An imposed sentence that is within the statutory limits 

will not be disturbed by an appellate court unless the sentencing court committed an abuse of discretion. 19 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. 20

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. 21

The district court stated that in preparation for sentencing, it had reviewed the presentence report, the victim impact 

17 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

18 Brief for appellant at 29.

19 See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

20 State v. Hunt, supra note 4.

21 State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
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statement, and the sentencing memorandum prepared by 

Abligo. The court then noted that Abligo had no prior criminal record. The presentence investigation report revealed that 

Abligo scored in the moderate to low risk range for reoffense; 

he was in the low-risk level for sex offense issues; the probation office did not recommend probation; and Abligo continued 

to assert that he was mistaken as to A.A.’s identity on the 

morning of March 6, 2019, an indicator that Abligo had yet to 

take responsibility for his actions.

Accordingly, we find that the district court properly considered each mitigating factor and did not abuse its discretion in 

imposing a sentence of 4 to 10 years’ imprisonment on Abligo. 

This assignment of error is without merit.

V. CONCLUSION

The district court did not abuse its discretion in ruling that 

the videos were inadmissible, in denying Abligo’s motion to 

continue, and in ruling that the text messages between A.A. 

and Abligo were admissible. Further, the district court did not 

clearly err in admitting Idrees’ testimony and report. The district court also did not abuse its discretion when it sentenced 

Abligo to 4 to 10 years’ imprisonment. Each of Abligo’s 

assignments of error is without merit, and the decision of the 

district court is affirmed.

Affirmed.