State v. Abligo , 312 Neb. 74 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/29/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. ABLIGO
    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 deci-
    sion 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 sen-
    tence 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 unrea-
    sonable 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
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. ABLIGO
    Cite as 
    312 Neb. 74
    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 state-
    ment 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 con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (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 infor-
    mation 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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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. ABLIGO
    Cite as 
    312 Neb. 74
    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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    STATE V. ABLIGO
    Cite as 
    312 Neb. 74
    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 vari-
    ous 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 req-
    uisite 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 inad-
    missible, 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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    STATE V. ABLIGO
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    312 Neb. 74
    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 deposi-
    tion 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 state-
    ment 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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    STATE V. ABLIGO
    Cite as 
    312 Neb. 74
    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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    STATE V. ABLIGO
    Cite as 
    312 Neb. 74
    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 simi-
    lar 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 foren-
    sic 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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    STATE V. ABLIGO
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    but does not prevent a victim from leaving out details, exag-
    gerating 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 sen-
    tenced 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. inad-
    missible; (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 mes-
    sages, which included inadmissible hearsay; (4) by admitting
    Idrees’ testimony and medical report, which were both inad-
    missible hearsay; and (5) by imposing an excessive sentence
    upon Abligo.
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    STATE V. ABLIGO
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    312 Neb. 74
    III. STANDARD OF REVIEW
    [1] Where the Nebraska Evidence Rules commit the evi-
    dentiary 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 unreason-
    able 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 dis-
    trict 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 danc-
    ing 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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    STATE V. ABLIGO
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    312 Neb. 74
    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 admis-
    sion 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 atten-
    tion 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 mov-
    ing 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 evi-
    dence 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 con-
    tact 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, indicat-
    ing that she was interested in a sexual relationship with Abligo,
    which she now wanted to hide in order to protect her relation-
    ship 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 prob-
    able than it would be without the evidence. 8 The bar for estab-
    lishing 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 preju-
    dice 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 convic-
    tion 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 estab-
    lish 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 consump-
    tion 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 drink-
    ing,” 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 inad-
    missible. 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 noncompli-
    ance. If the videos are instead assessed for their relevance,
    probative value, and prejudice, they are irrelevant to the under-
    lying issue of consent and any probative value would be sub-
    stantially 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 deter-
    mined 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 commu-
    nicate 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 indi-
    viduals 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 indi-
    viduals at trial. Although the late timing of Bils’ newly dis-
    closed 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 discre-
    tion 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 inadmis-
    sible 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 suf-
    ficient 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 conclu-
    sively prove who authored the messages. 14
    There can be no issue regarding whether the text messages
    were transcribed erroneously or inaccurately, because the mes-
    sages 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 messag-
    ing 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 mat-
    tered. 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 state-
    ments 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 con-
    templation 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 usu-
    ally 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 pres-
    ent symptoms, pain, or sensations, or the inception or general
    character of the cause or external source thereof insofar as rea-
    sonably 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 admissi-
    bility 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 com-
    plained 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 state-
    ments would be harmless. This assignment of error is with-
    out 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 indi-
    vidual circumstances.
    [10] An imposed sentence that is within the statutory limits
    will not be disturbed by an appellate court unless the sentenc-
    ing 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 expe-
    rience, (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 sentenc-
    ing, 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 crimi-
    nal 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 proba-
    tion 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 consid-
    ered 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 dis-
    trict 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.