IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) STATE V. VARNEY NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). STATE OF NEBRASKA, APPELLEE, V. ARTHUR T. VARNEY, APPELLANT. Filed November 5, 2019. No. A-18-1137. Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, Mary M. Dvorak, and Lauren J. Micek for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. MOORE, Chief Judge, and PIRTLE and WELCH, Judges. PIRTLE, Judge. INTRODUCTION This is a direct appeal from a conviction of first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2016) following a jury trial in the district court for Douglas County. For the reasons stated below we affirm. BACKGROUND On April 16, 2017, Arthur T. Varney walked down to his neighbor’s house to borrow some tools for a car repair project. A male occupant of the house at 3320 Fowler Avenue opened the door for Varney and gave Varney permission to come in and look for what he needed: a wrench, a pair of pliers, and a hammer. While Varney was hunting for the tools the victim, A.H., aged 20, was upstairs in the house fixing her hair. As she was looking in the mirror A.H. saw Varney coming -1- up the stairs behind her. Varney entered A.H.’s bedroom and grabbed her from behind around the neck and choked her. A.H. testified Varney hit her on the head with a hammer, unbuttoned her pants, and pushed her face down onto the bed in the room. Once on the bed A.H. testified Varney held her down and digitally penetrated her vagina while she screamed and tried to kick him. The commotion alerted A.H.’s cousin, Dominique B., age 18, and her brother Donovin B., age 15, who descended on the bedroom and were eventually able to chase Varney from the house. Following Varney’s departure the police were called. While waiting for the police to arrive Dominique noticed A.H.’s injuries which included a “knot on her forehead, fingerprints around her neck and blood in the toilet in the bathroom.” After the police arrived A.H. was taken to the hospital where a forensic examination was performed by a sexual assault nurse examiner. The nurse examiner catalogued physical injuries to A.H. which included a bruise on her forehead; five bruises on her left breast; and redness, swelling, and a one millimeter tear with bleeding in her vaginal area. The nurse examiner testified these injuries were consistent with “blunt penetrating force” to the vagina and consistent with the events described by A.H. The nurse examiner also testified that A.H. identified her attacker as “Juice,” a nickname used by Varney. The district court submitted the case to a jury and a guilty verdict was returned and accepted by the court. Varney was ultimately sentenced to serve a ...
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