State v. Wofford , 298 Neb. 412 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
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    STATE v. WOFFORD
    Cite as 
    298 Neb. 412
    State of Nebraska, appellee, v.
    Nico M. Wofford, appellant.
    ___ N.W.2d ___
    Filed December 15, 2017.   No. S-16-1004.
    1.	 Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for
    consolidation of prosecutions properly joinable will not be disturbed on
    appeal absent an abuse of discretion.
    2.	 Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
    An appellate court reviews de novo the facial validity of an attorney’s
    race-neutral explanation for using a peremptory challenge as a question
    of law. It reviews for clear error a trial court’s factual determination
    regarding whether a prosecutor’s race-neutral explanation is persuasive
    and whether the prosecutor’s use of a peremptory challenge was pur-
    posefully discriminatory.
    3.	 Trial: Juries: Evidence: Appeal and Error. A trial court’s decision
    to allow a jury during deliberations to rehear or review nontestimonial
    evidence is reviewed by an appellate court for an abuse of discretion.
    4.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    5.	 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.
    6.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
    the reasons or rulings of a trial judge are clearly untenable, unfairly
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    depriving a litigant of a substantial right and denying just results in mat-
    ters submitted for disposition.
    7.	 Trial: Joinder: Indictments and Informations. The propriety of a
    joint trial involves two questions: whether the consolidation is proper
    because the defendants could have been joined in the same indictment
    or information, and whether there was a right to severance because the
    defendants or the State would be prejudiced by an otherwise proper con-
    solidation of the prosecutions for trial.
    8.	 Trial: Joinder: Proof: Appeal and Error. The burden is on the party
    challenging a joint trial to demonstrate how and in what manner he or
    she was prejudiced.
    9.	 Trial: Joinder. Consolidation is proper if the offenses are part of a
    factually related transaction or series of events in which both of the
    defendants participated.
    10.	 Trial: Joinder: Evidence. A defendant is not considered prejudiced
    by a joinder where the evidence relating to both defendants would be
    admissible in a trial of either defendant separately.
    11.	 Juries: Prosecuting Attorneys: Equal Protection. A prosecutor is
    ordinarily entitled to exercise permitted peremptory challenges for any
    reason at all, if that reason is related to his or her view concerning the
    outcome of the case. However, the U.S. Supreme Court in Batson v.
    Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986), held
    that the Equal Protection Clause forbids the prosecutor to challenge
    jurors solely because of their race.
    12.	 Juries: Discrimination: Prosecuting Attorneys: Proof. Determining
    whether a prosecutor impermissibly struck a prospective juror based on
    race is a three-step process. In this three-step process, the ultimate bur-
    den of persuasion regarding racial motivation rests with, and never shifts
    from, the opponent of the strike. First, a defendant must make a prima
    facie showing that the prosecutor exercised a peremptory challenge
    because of race. Second, assuming the defendant made such a showing,
    the prosecutor must offer a race-neutral basis for striking the juror. And
    third, the trial court must determine whether the defendant has carried
    his or her burden of proving purposeful discrimination.
    13.	 Juries: Discrimination: Prosecuting Attorneys. Whether a prosecu-
    tor’s reasons for using a peremptory challenge are race neutral is a ques-
    tion of law.
    14.	 ____: ____: ____. In determining whether a prosecutor’s explanation for
    using a peremptory challenge is race neutral, a court is not required to
    reject the explanation because it is not persuasive, or even plausible; it is
    sufficient if the reason is not inherently discriminatory. Only inherently
    discriminatory explanations are facially invalid.
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    15.	 Appeal and Error. An appellate court does not consider errors which
    are argued but not assigned.
    16.	 Trial: Juries: Evidence. A trial court does not have discretion to submit
    testimonial materials to the jury for unsupervised review, but the trial
    court has broad discretion to submit to the jury nontestimonial exhibits,
    in particular, those constituting substantive evidence of the defend­
    ant’s guilt.
    17.	 Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether the sentencing court abused its discretion in
    considering and applying the relevant factors as well as any applicable
    legal principles in determining the sentence to be imposed.
    18.	 Sentences. When imposing a sentence, the sentencing court is to 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 amount of violence
    involved in the commission of the crime.
    19.	 Sentences: Judgments. The appropriateness of a sentence is necessar-
    ily a subjective judgment and includes the sentencing judge’s observa-
    tions of the defendant’s demeanor and attitude and all of the facts and
    circumstances surrounding the defendant’s life.
    Appeal from the District Court for Douglas County: Duane
    C. Dougherty, Judge. Affirmed.
    Ernest H. Addison, Jr., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Nico M. Wofford appeals his convictions and sentences in
    the district court for Douglas County for unlawful discharge
    of a firearm and use of a weapon to commit a felony. Wofford
    assigns error to certain rulings and actions of the trial court,
    and he claims that there was insufficient evidence for his
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    convictions and that the court imposed excessive sentences.
    We affirm Wofford’s convictions and sentences.
    STATEMENT OF FACTS
    On July 30, 2015, police officers responded to reports of
    a shooting in the area of South 33d and Q Streets in Omaha,
    Nebraska. Police found a dark blue Oldsmobile parked near
    a convenience store on Q Street. Shots had been fired into
    the Oldsmobile from another vehicle that was passing it in an
    adjacent lane. Four adults and two children had been inside the
    Oldsmobile at the time, and one of the adult occupants was
    injured by a gunshot to the neck. Police found another vehicle,
    a silver Saturn, stopped a short distance away on South 33d
    Avenue; it appeared that the Saturn had been disabled after it
    struck the curb of a storm drain after turning onto South 33d
    Avenue from Q Street. Witnesses stated that three men had run
    from the Saturn after it stopped.
    The registered owner of the Saturn was Lafferrell Matthews.
    Officers investigating the shooting found Matthews in the area
    near South 33d and S Streets. When the officers approached
    Matthews, he told them he had been looking for police in order
    to report that his car had been stolen. In later questioning by
    police, Matthews initially repeated that his car had been stolen,
    but he eventually admitted that he was driving the Saturn at
    the time the shooting occurred. Matthews further told police
    that Wofford and another man, Dominique Hairston, were pas-
    sengers in the Saturn.
    Wofford and Hairston were each charged in the district court
    with unlawful discharge of a firearm and use of a weapon to
    commit a felony. The State moved the court to consolidate
    the two cases for trial pursuant to Neb. Rev. Stat. § 29-2002
    (Reissue 2016). Wofford objected to the consolidation. He
    argued, inter alia, that consolidation would prejudice him
    because there was a real probability that the jury could find
    him guilty by association with Hairston and because there was
    a risk of inconsistent defenses between the two codefendants.
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    Hairston did not object to consolidation. The court rejected
    Wofford’s arguments and sustained the State’s motion to con-
    solidate the two cases for trial.
    During jury selection for the consolidated trial, Wofford
    raised a challenge under Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986). Wofford noted that both
    he and Hairston were African-American. He further noted that
    only 1 out of the 62 potential jurors included in the venire
    was African-American and that the State used a peremptory
    strike on the sole African-American. Hairston joined Wofford’s
    Batson challenge. The prosecutor responded to the challenge
    by stating that his reason for striking the potential juror was
    because “numerous times during questioning, he explained that
    he had religious beliefs that, yes, he could vote with the group,
    but he would not be able to judge somebody on an individual
    basis.” The prosecutor stated that he did not think the potential
    juror would be appropriate based on his “hesitancy to be able
    to make a judgment based on his religious beliefs on an indi-
    vidual basis.”
    In connection with the Batson discussion, the prosecutor
    appeared to be referring to the voir dire of the potential juror
    wherein the prosecutor asked, “[W]hen you go back to the jury
    room, you’re going to vote, and you’re going to vote guilty
    or innocent. Do your religious beliefs prevent you from doing
    that as an individual?” The potential juror responded, “Yes, it
    does.” The prosecutor followed up by asking, “You wouldn’t
    be able to set aside your religious beliefs and give . . . Wofford
    and . . . Hairston a fair trial?,” to which the potential juror
    responded “No.” At that point in the voir dire, the State chal-
    lenged the potential juror for cause. The court questioned the
    potential juror further and asked whether the potential juror
    would be comfortable judging others as part of a group, even
    in light of his religious beliefs. The potential juror responded
    to the court, “As a group I can, yeah.” The court asked further
    questions regarding whether the potential juror meant that he
    would simply go along with the group’s decision or whether
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    he would make his own decision. The juror replied, “Based on
    the evidence, if I disagree, yes, I will stand . . . my ground.”
    Thereafter, the State appeared to abandon its challenge for
    cause but used one of its peremptory challenges to strike the
    potential juror.
    In the Batson challenge, after the State gave its reasons
    for striking the potential juror, the court ruled that the State’s
    reasons for removal were acceptable. Wofford and Hairston
    then argued that the State’s reasons were pretextual because
    the potential juror’s statements “arose more from a language
    problem than anything else” and that the potential juror did
    not appear to fully understand the prosecutor’s questions.
    They noted that when the potential juror was asked “more
    pointed, direct questions, can you be fair and impartial, will
    you make up your own mind and not be swayed by the
    group, he said yes to all that.” The court then found that
    the reasons given by the State were “neutral and not racial
    based,” and it therefore denied Wofford and Hairston’s Batson
    challenge.
    Matthews, who was charged with the same offenses as
    Wofford and Hairston but whose case was not consolidated
    with their trial, testified at Wofford and Hairston’s consolidated
    trial. Matthews testified that on July 30, 2015, he was driving
    his Saturn and Wofford and Hairston were passengers, Wofford
    riding in the back seat on the passenger side and Hairston in
    the front passenger seat. Matthews first noticed the Oldsmobile
    in front of his Saturn when he was stopped at a light at the
    intersection of 30th and Q Streets. Matthews testified that
    Hairston said that he recognized the Oldsmobile. After going
    through the intersection of 30th and Q Streets, Matthews
    moved into the left lane to pass the Oldsmobile, which was in
    the right lane. As he was passing the Oldsmobile, Matthews
    heard three shots coming from the back seat of his Saturn,
    where Wofford was located. Matthew testified that he then saw
    Hairston pull out a handgun, lean out the window, and fire six
    or seven shots.
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    The State presented other evidence including, inter alia,
    testimony by various police officers who had investigated the
    shooting. Testimony by officers indicated that, based on shell
    casings found at the scene of the shooting, the shots fired
    at the Oldsmobile had been fired from two different guns.
    During the testimony of one of the officers, the State offered
    into evidence a surveillance camera video that was taken from
    a restaurant located near the site of the shooting and which
    depicted the Saturn passing the Oldsmobile as the shooting
    occurred. The video was received into evidence without objec-
    tion, and the video was played for the jury while the State
    questioned the officer regarding what was being depicted in
    the video.
    After the State rested its case, Wofford and Hairston moved
    the court to dismiss on the basis that the State had not shown
    a prima facie case. The court overruled the motion to dismiss.
    Wofford chose not to testify in his own defense. Hairston
    testified in his own defense and generally testified that
    while he had ridden with Matthews in Matthews’ car on
    July 30, 2015, he did not ride in Matthews’ car at a time
    when Wofford was a passenger, and that he did not fire any
    shots out of Matthews’ car. Hairston did not testify that
    Wofford had been in Matthews’ car at any time on July 30,
    and he did not testify that Wofford had fired any shots from
    Matthews’ car.
    The case was submitted to the jury. During deliberations,
    the jury sent a request asking for a “t.v. for video please.” The
    court agreed to the request; however, a laptop computer rather
    than a television was sent to the jury to be used for viewing the
    surveillance video.
    The jury rendered verdicts finding Wofford guilty on both
    counts. Sometime after the jury was dismissed, Wofford’s
    counsel was approached by one of the jurors, who told him that
    during deliberations, the jury had viewed a “mirror-image” of
    the surveillance video that had been played in court. Wofford’s
    counsel later spoke with the jury foreperson, who said that he
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    and another juror had used a feature on the laptop computer
    that had been provided to the jury to play a reverse or mirror
    image of the surveillance video. The foreperson further said
    that after viewing the mirror image, they had called over other
    jurors to view the mirror image. The foreperson and another
    juror told counsel that when they viewed the mirror image,
    they could see an arm coming out of the back seat window of
    the vehicle and a front-seat passenger in a white shirt, and that
    they had not noticed these things when they had viewed the
    video in the original manner.
    Wofford filed a motion for a new trial in which he alleged
    two bases for a new trial: First, Wofford alleged that there was
    an irregularity in the proceedings because during the jury’s
    deliberation, the court provided it with a laptop computer
    which allowed jurors to view a mirror image of the surveil-
    lance. Second, Wofford alleged that that there was jury miscon-
    duct because the jury viewed a mirror image of the surveillance
    video; he argued that the mirror image was extraneous preju-
    dicial information that was not presented in court. The court
    overruled Wofford’s motion for a new trial and his request for
    an evidentiary hearing on the motion.
    The court thereafter sentenced Wofford to imprisonment for
    20 to 30 years for unlawful discharge of a firearm and to an
    additional term of imprisonment for 20 to 30 years for use of
    a weapon to commit a felony. The court ordered the two sen-
    tences to be run consecutively to each other.
    Wofford appeals his convictions and sentences.
    ASSIGNMENTS OF ERROR
    Wofford claims that the district court erred when it (1) sus-
    tained the State’s motion to consolidate his trial with Hairston’s;
    (2) overruled his challenge under Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986), to the jury
    selection process; and (3) allowed the jury unsupervised and
    unfettered access to view the surveillance video during delib-
    erations. Wofford further claims that there was insufficient
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    evidence to support his convictions and that the court imposed
    excessive sentences.
    STANDARDS OF REVIEW
    [1] A trial court’s ruling on a motion for consolidation of
    prosecutions properly joinable will not be disturbed on appeal
    absent an abuse of discretion. State v. Stricklin, 
    290 Neb. 542
    ,
    
    861 N.W.2d 367
    (2015).
    [2] An appellate court reviews de novo the facial validity of
    an attorney’s race-neutral explanation for using a peremptory
    challenge as a question of law. It reviews for clear error a trial
    court’s factual determination regarding whether a prosecu-
    tor’s race-neutral explanation is persuasive and whether the
    prosecutor’s use of a peremptory challenge was purposefully
    discriminatory. State v. Clifton, 
    296 Neb. 135
    , 
    892 N.W.2d 112
    (2017).
    [3] A trial court’s decision to allow a jury during delibera-
    tions to rehear or review nontestimonial evidence is reviewed
    by an appellate court for an abuse of discretion. See State v.
    Vandever, 
    287 Neb. 807
    , 
    844 N.W.2d 783
    (2014).
    [4] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same:
    An appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, or reweigh the evidence;
    such matters are for the finder of fact. The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt. State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017).
    [5,6] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by
    the trial court. State v. Jones, 
    297 Neb. 557
    , 
    900 N.W.2d 757
    (2017). A judicial abuse of discretion exists when the rea-
    sons or rulings of a trial judge are clearly untenable, unfairly
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    depriving a litigant of a substantial right and denying just
    results in matters submitted for disposition. 
    Id. ANALYSIS District
    Court Did Not Abuse Its Discretion When
    It Sustained Motion to Consolidate Wofford’s
    and Hairston’s Cases for Trial.
    Wofford claims that the district court erred when it sustained
    the State’s motion to consolidate his trial with that of Hairston.
    We conclude that the court did not abuse its discretion.
    [7,8] We note first that there is no constitutional right to
    a separate trial and that instead, the right is statutory and
    depends upon a showing that prejudice will result from a
    joint trial. State v. Stricklin, 
    290 Neb. 542
    , 
    861 N.W.2d 367
    (2015). See § 29-2002. The propriety of a joint trial involves
    two questions: whether the consolidation is proper because
    the defendants could have been joined in the same indictment
    or information, and whether there was a right to severance
    because the defendants or the State would be prejudiced by
    an otherwise proper consolidation of the prosecutions for trial.
    State v. 
    Stricklin, supra
    . The burden is on the party challenging
    a joint trial to demonstrate how and in what manner he or she
    was prejudiced. 
    Id. [9] We
    have stated that consolidation is proper if the offenses
    are part of a factually related transaction or series of events in
    which both of the defendants participated. 
    Id. Wofford does
    not appear to dispute that the charges he and Hairston faced
    were part of a factually related transaction or series of events.
    Further, we note that Wofford and Hairston were charged
    with the same offenses and that the charges against each of
    them arose from their alleged involvement in the July 30,
    2015, shooting.
    Instead, Wofford argues that the district court’s consolida-
    tion of the two cases was an abuse of discretion because it
    prejudiced him and deprived him of a fair trial. Wofford asserts
    that he was prejudiced by the consolidated trial because the
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    jury may have been misled by evidence implicating Hairston
    and may have found culpability on Wofford’s part based on
    guilt by association with Hairston. Wofford also contends that
    he was prejudiced because of the testimony of Matthews, a
    codefendant whose trial was not consolidated with that of
    ­
    Wofford and Hairston. Wofford further argues that he was
    prejudiced because while he chose not to testify in his defense,
    Hairston did testify in his own defense, and because he admit-
    ted certain things, such as an association with Matthews, which
    the jury might have used as evidence against Wofford.
    We disagree with Wofford’s assertion that consolidation
    unfairly prejudiced him. Regarding Wofford’s argument that
    he was prejudiced as a result of guilt by association with
    Hairston, we agree with the State’s contention that guilt by
    association is a risk present any time codefendants’ trials are
    consolidated and that such risk may be adequately amelio-
    rated by proper jury instruction. In this case, the district court
    instructed the jury that it “must come to a separate decision
    regarding each Defendant.” Also, the risk of guilt by associa-
    tion in this case appeared small. This does not appear to be a
    case where the evidence against Hairston was much s­tronger
    than that against Wofford. Instead, the same evidence, in par-
    ticular Matthews’ testimony, seemed to implicate both equally.
    Also, contrary to Wofford’s contention that he and Hairston
    each relied on a defense of exonerating himself by implicat-
    ing the other, we note that when Hairston testified in his own
    defense, he generally denied being involved in the shoot-
    ing. But Hairston did not implicate Wofford, and instead,
    he testified that he did not know whether or not Wofford
    was involved.
    Having reviewed the record, we believe that there is no indi-
    cation that any of the evidence admitted in this consolidated
    case, including the testimony of Matthews and the testimony
    of Hairston, would not have been admissible against Wofford
    in a separate trial. To the extent Wofford argues that certain
    testimony by Matthews should not have been admitted or that
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    certain evidence Wofford offered regarding Matthews should
    have been admitted, it is an argument focused on the evidence
    ruling and it does not appear that the admission or refusal of
    such evidence was influenced by the fact that Wofford’s trial
    was consolidated with that of Hairston. Wofford does not sepa-
    rately assign error to the admission or refusal of such evidence,
    and therefore, we consider the argument only to the extent it
    impacts the correctness of the court’s decision to consolidate
    the trials.
    [10] Because it appears that the rulings regarding the admis-
    sibility of the evidence noted by Wofford would have been
    the same in a separate trial, Wofford has failed to show that
    the consolidation of his trial with that of Hairston caused him
    prejudice. A defendant is not considered prejudiced by a join-
    der where the evidence relating to both defendants would be
    admissible in a trial of either defendant separately. See State v.
    Stricklin, 
    290 Neb. 542
    , 
    861 N.W.2d 367
    (2015).
    We determine that the consolidation of Wofford’s trial with
    that of Hairston was proper and that Wofford was not preju-
    diced by the consolidation. The district court therefore did not
    abuse its discretion when it sustained the State’s motion to
    consolidate the trials, and we reject Wofford’s first assignment
    of error.
    District Court Did Not Err When It Overruled
    Wofford’s Batson Challenge to the
    Jury Selection Process.
    Wofford claims that the district court erred when it over-
    ruled his challenge under Batson v. Kentucky, 
    476 U.S. 79
    ,
    
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986), to the jury selection
    process. We conclude that the court did not so err.
    We note first that Wofford appears to argue that he chal-
    lenged both the composition of the venire and the prosecutor’s
    strike of the sole African-American potential juror. However,
    other than noting that “only one out of 62 [potential] jurors
    was black,” the record does not show that Wofford developed
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    an attempt to challenge the composition of the venire. That is,
    Wofford did not attempt to make a showing that the underrep-
    resentation of racial minorities was “‘due to systematic exclu-
    sion of the group in the jury-selection process’” as would be
    required for such a challenge. See State v. Thomas, 
    262 Neb. 985
    , 1002, 
    637 N.W.2d 632
    , 652 (2002). Instead, Wofford’s
    challenge at the district court focused on the State’s use of a
    peremptory strike to remove the sole African-American poten-
    tial juror, and on appeal, we focus on that challenge.
    [11] A prosecutor is ordinarily entitled to exercise permit-
    ted peremptory challenges for any reason at all, if that reason
    is related to his or her view concerning the outcome of the
    case. State v. Clifton, 
    296 Neb. 135
    , 
    892 N.W.2d 112
    (2017).
    However, the U.S. Supreme Court in Batson v. 
    Kentucky, supra
    , held that the Equal Protection Clause forbids the pros-
    ecutor from challenging jurors solely because of their race.
    [12] Determining whether a prosecutor impermissibly
    struck a prospective juror based on race is a three-step proc­
    ess. State v. 
    Clifton, supra
    . In this three-step process, the
    ultimate burden of persuasion regarding racial motivation
    rests with, and never shifts from, the opponent of the strike.
    
    Id. First, a
    defendant must make a prima facie showing that
    the prosecutor exercised a peremptory challenge because of
    race. Second, assuming the defendant made such a showing,
    the prosecutor must offer a race-neutral basis for striking the
    juror. And third, the trial court must determine whether the
    defendant has carried his or her burden of proving purposeful
    discrimination. 
    Id. [13] Once
    the trial court has decided the ultimate question of
    intentional discrimination, however, the question on appeal is
    only whether the prosecutor’s reasons were facially race neu-
    tral and whether the trial court’s final determination regarding
    purposeful discrimination was clearly erroneous. 
    Id. Whether a
    prosecutor’s reasons for using a peremptory challenge are race
    neutral is a question of law. 
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    [14] We conclude that in this case, the prosecutor’s stated
    reason for exercising his peremptory strike was race neutral.
    The prosecutor generally stated that he struck the prospective
    juror because he was concerned by the prospective juror’s
    statements to the effect that because of his religious beliefs, he
    did not think that he could judge another person. In determin-
    ing whether a prosecutor’s explanation for using a peremptory
    challenge is race neutral, a court is not required to reject the
    explanation because it is not persuasive, or even plausible; it is
    sufficient if the reason is not inherently discriminatory. 
    Id. Only inherently
    discriminatory explanations are facially invalid. 
    Id. The prosecutor
    in this case gave a reason that did not indicate
    discrimination based on the prospective juror’s race.
    We next consider whether the district court’s final determi-
    nation regarding purposeful discrimination was clearly errone-
    ous. The third step of the inquiry under Batson v. Kentucky,
    
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986), requires
    the trial court to evaluate the persuasiveness of the justifi-
    cation proffered by the prosecutor; it ultimately determines
    whether the explanation was a pretext for discrimination. State
    v. Clifton, 
    296 Neb. 135
    , 
    892 N.W.2d 112
    (2017). A trial
    court’s determination that the prosecutor’s race-neutral expla-
    nation should be believed frequently involves its evaluation
    of a prosecutor’s credibility, which requires deference to the
    court’s findings absent exceptional circumstances. 
    Id. The question
    before us is whether the district court clearly
    erred in finding that the prosecutor’s race-neutral explanation
    for the peremptory strike was genuine and not pretextual, and
    we may consider the rationality of the prosecutor’s reason in
    our inquiry. 
    Id. A prosecutor’s
    intuitive assumptions, inarticu-
    lable factors, or even hunches can be proper bases for rejecting
    a potential juror, so long as the reasons are not based on imper-
    missible group bias. 
    Id. We believe
    that the prosecutor’s stated reason for striking
    the juror appears to be a valid reason that was not a pretext for
    racial discrimination. The prosecutor was concerned whether
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    the potential juror’s stated beliefs would prevent him from
    participating in deliberations because of his reluctance to judge
    Wofford. The potential juror had made statements to this effect,
    and although the potential juror also made other statements
    indicating that he could make such a judgment as part of a
    group and that he could render a fair decision, the potential
    juror’s initial statements could have given the prosecutor valid
    cause for concern.
    Based on our review of the record, we determine the district
    court did not clearly err when it found that the prosecutor’s
    race-neutral explanation for striking the sole African-American
    prospective juror was valid and that the use of the peremptory
    challenge was not purposefully discriminatory. We therefore
    reject Wofford’s claim that the district court erred when it
    denied his Batson challenge.
    District Court Did Not Abuse Its Discretion When
    It Allowed the Jury Access to Surveillance
    Video During Deliberations.
    For his next assignment of error, Wofford claims that the
    district court erred when it allowed the jury unsupervised and
    unfettered access to view the surveillance video during delib-
    erations. We determine that the district court did not err.
    [15] As a preliminary matter, we note that in his brief,
    Wofford argues that the court erred when it overruled his
    motion for a new trial based on (1) alleged irregularities in the
    proceedings because the jury was provided a laptop computer
    to view the surveillance video and (2) alleged jury misconduct
    because the jury used the laptop computer to view a reversed
    image of the surveillance video. This claim differs from his
    assignment of error. An appellate court does not consider
    errors which are argued but not assigned. State v. Jedlicka,
    
    297 Neb. 276
    , 
    900 N.W.2d 454
    (2017). We therefore do not
    consider Wofford’s arguments related to the overruling of the
    motion for a new trial in this appeal, and instead, we limit
    our consideration to the error assigned. However, we note
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    that in his appeal, Wofford’s codefendant, Hairston, raised the
    court’s overruling of the motion for a new trial related to the
    jury’s consideration of the video and that we concluded that
    the district court did not abuse its discretion when it overruled
    Hairston’s motion for a new trial based on alleged jury miscon-
    duct. State v. Hairston, ante p. 251, ___ N.W.2d ___ (2017).
    We turn to consideration of the error assigned by Wofford.
    [16] A trial court does not have discretion to submit testimo-
    nial materials to the jury for unsupervised review, but the trial
    court has broad discretion to submit to the jury nontestimonial
    exhibits, in particular, those constituting substantive evidence
    of the defendant’s guilt. See State v. Henry, 
    292 Neb. 834
    , 
    875 N.W.2d 374
    (2016). The surveillance video in this case was not
    testimony but was instead a nontestimonial exhibit that consti-
    tuted substantive evidence of Wofford’s guilt. Whether or not
    Wofford could be identified in the video, the video depicted the
    shooting for which he was charged, and the video corroborated
    other evidence. Because the DVD’s containing the surveillance
    video were nontestimonial exhibits that contained substantive
    evidence of Wofford’s guilt, the district court had broad discre-
    tion to submit the DVD’s to the jury for use during delibera-
    tions. We find no abuse of discretion.
    To the extent Wofford argues that it was improper to allow
    the jury to use the laptop computer to view the video, it is
    clear that some sort of device was necessary to allow the jury
    to view the DVD’s, and there is no indication in the record that
    Wofford objected to the particular device—the laptop com-
    puter—that was given to the jury at the time it was given. We
    conclude that the court did not abuse its discretion by doing so,
    and we reject this assignment of error.
    Evidence Was Sufficient to Support
    Wofford’s Convictions.
    Wofford claims that there was insufficient evidence to sup-
    port his convictions. Because the evidence was sufficient, we
    reject this assignment of error.
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    We note that Wofford framed his assignment of error as a
    challenge to the sufficiency of the evidence, but in his argu-
    ment, he asserts that the district court erred when it overruled
    his motion to dismiss at the close of the State’s case. We have
    held that a defendant who moves for dismissal or a directed
    verdict at the close of the evidence in the State’s case in chief
    in a criminal prosecution, and who, when the court overrules
    the dismissal or directed verdict motion, proceeds with trial
    and introduces evidence, waives the appellate right to chal-
    lenge correctness in the trial court’s overruling of the motion
    for dismissal or a directed verdict but may still challenge the
    sufficiency of the evidence. State v. Olbricht, 
    294 Neb. 974
    ,
    
    885 N.W.2d 699
    (2016). Because Wofford framed his assign-
    ment of error as a challenge to the sufficiency of the evidence,
    we consider his arguments as such and we need not consider
    whether he waived his right to challenge the court’s overruling
    of his motion to dismiss.
    Wofford generally contends that the State’s evidence was
    not sufficient to prove a prima facie case for the charges
    against him. He argues that the testimony of the State’s wit-
    nesses was not corroborated by any physical evidence such as
    DNA testing or fingerprinting that would identify Wofford as
    the person who fired the shots. He further argues that none of
    the occupants of the vehicle into which the shots were fired
    identified him as the shooter, that no weapon was found in his
    possession, and that there was no gunpowder residue to con-
    nect him to the shooting. Wofford further contends that the
    testimony of his codefendants, Matthews and Hairston, was
    “so self serving and so extremely doubtful in character” that
    it lacked probative value to support his convictions. Brief for
    appellant at 19.
    Physical and testimonial evidence in this case showed that
    shots had been fired from the Saturn into the Oldsmobile on
    July 30, 2015. Matthews testified that Wofford was sitting on
    the passenger side of the back seat of the Saturn that Matthews
    was driving, and Matthews heard shots being fired from the
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    back seat. Such testimonial evidence, if believed by the jury,
    was, in combination with the other evidence presented by the
    State, sufficient to show Wofford’s guilt for the crimes charged.
    The absence of physical evidence, forensic or otherwise, iden-
    tifying Wofford as the shooter does not necessarily negate a
    finding that he fired the shots. To the extent Wofford argues
    that Matthews’ testimony was not credible, when reviewing
    a claim of sufficiency of the evidence, we do not pass on the
    credibility of witnesses, because such matters are for the finder
    of fact. See State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017). The jury as fact finder in this case had the duty to
    assess Matthews’ credibility, and the jury was able to consider
    the extent to which Matthews’ self-interest or other factors
    affected his credibility.
    The relevant question for an appellate court is whether,
    after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt. 
    Id. The jury
    in this case could reasonably have found Matthews’
    testimony credible and, viewing his testimony in connection
    with the other evidence in this case, found Wofford guilty of
    the crimes charged.
    We conclude that the evidence was sufficient to support
    Wofford’s convictions. We reject this assignment of error.
    District Court Did Not Impose
    Excessive Sentences.
    Wofford claims that the court imposed excessive sentences.
    We conclude that the court did not abuse its discretion when it
    sentenced Wofford.
    Wofford was convicted of unlawful discharge of a firearm at
    an occupied motor vehicle, which is a Class ID felony under
    Neb. Rev. Stat. § 28-1212.02 (Reissue 2016). The sentencing
    range for a Class ID felony is imprisonment for a mandatory
    minimum of 3 years and maximum of 50 years. Neb. Rev. Stat.
    § 28-105(1) (Cum. Supp. 2014). He was also convicted of use
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    of a firearm to commit a felony, which is a Class IC felony
    under Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016).
    The sentencing range for a Class IC felony is imprisonment for
    a mandatory minimum of 5 years and maximum of 50 years.
    § 28-105(1). The district court sentenced Wofford to imprison-
    ment for 20 to 30 years for unlawful discharge of a firearm and
    to a consecutive term of imprisonment for 20 to 30 years for
    use of a weapon to commit a felony. The sentences were within
    the statutory ranges, and we therefore review the sentences for
    an abuse of discretion by the district court. See State v. Jones,
    
    297 Neb. 557
    , 
    900 N.W.2d 757
    (2017).
    [17-19] Where a sentence imposed within the statutory
    limits is alleged on appeal to be excessive, the appellate
    court must determine whether the sentencing court abused
    its discretion in considering and applying the relevant factors
    as well as any applicable legal principles in determining the
    sentence to be imposed. State v. Stone, ante p. 53, 
    902 N.W.2d 197
    (2017). When imposing a sentence, the sentencing court
    is to consider the defendant’s (1) age, (2) mentality, (3) educa-
    tion 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 amount of violence involved in the com-
    mission of the crime. 
    Id. The appropriateness
    of a sentence is
    necessarily a subjective judgment and includes the sentencing
    judge’s observations of the defendant’s demeanor and atti-
    tude and all of the facts and circumstances surrounding the
    defendant’s life. State v. Jackson, 
    297 Neb. 22
    , 
    899 N.W.2d 215
    (2017).
    Wofford contends that the district court did not adequately
    consider all these factors when it imposed his sentences.
    He asserts in particular that the court did not give adequate
    weight to the fact that he had no prior felony convictions or
    convictions for assaultive or violent behavior; that he had
    a long, stable, and consistent employment history; that he
    had no bond violations after bonding out of jail and had not
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    lost any good time while he was incarcerated prior to bond-
    ing out; and that he had strong family ties, including two
    minor children.
    The record of the sentencing hearing indicates that these
    factors were presented to the court, and the court acknowl-
    edged Wofford’s arguments. The court indicated that when it
    determined Wofford’s sentences, it also considered the serious-
    ness of the crime and testing that showed that Wofford was at
    a very high risk to reoffend.
    The sentences imposed by the district court were in the
    middle of the statutory ranges for the offenses. Nothing in the
    record indicates that the court failed to consider the mitigating
    factors advanced by Wofford or that it did not give adequate
    weight to such factors when considered in light of the factors
    cited by the court to justify the sentences. We find no abuse of
    discretion in the sentencing, and we therefore reject Wofford’s
    claim of excessive sentences.
    CONCLUSION
    Having rejected Wofford’s assignments of error, we affirm
    Wofford’s convictions and sentences.
    A ffirmed.
    Wright, J., not participating in the decision.