In re Interest of Malik T. ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MALIK T.
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).
IN RE INTEREST OF MALIK T., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
MALIK T., APPELLANT.
Filed October 27, 2015. No. A-15-229.
Appeal from the Separate Juvenile Court of Douglas County: WADIE THOMAS, Judge.
Affirmed.
Chinazo Christopher Odigbo for appellant.
Donald W. Kleine, Douglas County Attorney, Paulette Merrell, and Jocelyn Brasher,
Senior Certified Law Student, for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Malik T. appeals his adjudication under Neb. Rev. Stat. § 43-247(2) (Reissue 2008) in the
separate juvenile court for Douglas County. Malik alleges that there was insufficient evidence to
support the juvenile court’s determination that he committed the offense of attempted robbery.
Because we conclude that the evidence is sufficient to establish beyond a reasonable doubt that
Malik committed attempted robbery, we affirm.
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BACKGROUND
On October 31, 2014, the State filed a petition requesting that Malik, who was 16 years
old at the time, be adjudicated as a child within the meaning of § 43-247(2). The petition alleged
that Malik had committed attempted robbery, a Class III felony. Specifically, the petition alleged
that on October 30, 2014, Malik attempted to forcibly, and by violence, or by putting in fear, take
from the victim, Damon Ennis, money or personal property with the intent to steal. Section
43-247(2) gives the juvenile court jurisdiction over any juvenile who has committed an act which
would constitute a felony under the laws of this state. Malik entered a plea of denial and an
adjudication hearing was held.
The victim, Damon Ennis, testified that on October 30, 2014, around 6:30 p.m. or 7 p.m.,
he had just finished jogging and was walking on the sidewalk when he was approached by “four
black males” who attempted to rob him at gunpoint. Ennis testified that the four males came up
behind him and one of them requested a cigarette, to which he responded that he did not have
any and kept walking. Ennis testified that one of the individuals then approached him from the
side and had a gun. He testified that at that point he realized he was surrounded by four
individuals--one on his side with a gun and three others behind him. All of them were standing
within a few feet of Ennis. The individual with the gun said that the group had “more than one
heater,” which Ennis understood to mean the group had more than one gun. He did not see any
other guns. Ennis testified that the individual holding the gun said to him “Give me all you got,”
or “What you got?” Ennis assessed the situation and tried to figure out what to do. He stated that
his plan was to grab one of the individuals and throw him in the way of the gunshot and then
Ennis would have a chance to run away. Ennis testified that a car then came around the corner
and one of the men pointed out the car was coming and all four men took off running. Ennis
stated that these events all happened in about two minutes.
In regard to Malik specifically, Ennis testified that Malik was not the individual with the
gun, and that he did not say anything. Ennis testified that Malik approached him in a threatening
way because he was standing within three feet of him and was with the others who were trying to
rob him at gunpoint. Ennis stated that based on the actions of the four individuals, including
Malik, they were all together as a group. Ennis also testified that when the car came, Malik ran
away with the other individuals.
Ennis testified that after the four men ran off, he called the police from his cell phone and
police officers arrived within minutes. He told the officers what had happened and they notified
other officers in the area to look for the group of males Ennis described. Other police officers
quickly located four males nearby. Ennis then went with the officers who had responded to his
call to the location where the four males were found to see if he could identify them. Ennis
identified the four individuals as the men who tried to rob him. The officers also showed Ennis a
gun they had located and Ennis identified it as the same gun one of the individuals had pointed at
him.
Omaha Police Officer Scott Richter testified that during the evening of October 30, 2014,
he was dispatched to investigate a robbery that had just occurred. He testified that he arrived at
Ennis’ location within a minute or two. After Ennis told him what had happened, he put out a
broadcast with a description of the suspects. Richter testified that other officers responded to the
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broadcast and advised that they had detained several individuals who were possibly involved. He
then brought Ennis to the location where the parties were detained and conducted a “show-up” of
the detained individuals one at a time and Ennis advised that each of the four individuals were
involved in the incident. Richter also testified that a weapon was located in the vicinity where the
individuals were found.
Omaha Police Officer Mike Sundermeier testified that he heard the robbery broadcast and
started looking in the area for suspects. Sundermeier testified that he saw a group of four
individual who matched the description of the suspects. He stopped the individuals and Ennis
subsequently identified them as suspects in the robbery. Sundermeier testified that a weapon, a
BB gun, was found about 40 feet from where the individuals were stopped. One of the
individuals subsequently admitted to having the gun.
Following the hearing, the juvenile court entered an order finding beyond a reasonable
doubt that Malik had committed the offense of attempted robbery and adjudicating him under
§ 43-247(2).
ASSIGNMENT OF ERROR
Malik assigns that there was insufficient evidence to support the juvenile court’s finding
that he committed the offense of attempted robbery.
STANDARD OF REVIEW
Juvenile cases are reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings. In re Interest of Karlie D., 283
Neb. 581, 811 N.W.2d 214 (2012). However, when the evidence is in conflict, an appellate court
may consider and give weight to the fact that the trial court observed the witnesses and accepted
one version of the facts over the other. Id.
ANALYSIS
Malik assigns that the juvenile court erred in finding that the evidence was sufficient to
prove that he committed attempted robbery. He specifically argues that the State failed to prove
that he intended to commit the crime of attempted robbery, or that he took a substantial step
toward committing the crime. We find that the evidence was sufficient to find that Malik
committed the offense of attempted robbery. Under Neb. Rev. Stat. § 28-324 (1) (Reissue 2008),
“[a] person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting
in fear, takes from the person of another any money or personal property of any value whatever.”
Pursuant to Neb. Rev. Stat. § 28-201(1) (Cum. Supp. 2014), a person is guilty of an attempt to
commit a crime if he or she:
(a) Intentionally engages in conduct which would constitute the crime if the
attendant circumstances were as he or she believes them to be; or
(b) Intentionally engages in conduct which, under the circumstances as he or she
believes them to be, constitutes a substantial step in a course of conduct intended to
culminate in his or her commission of the crime.
(2) When causing a particular result is an element of the crime, a person shall be
guilty of an attempt to commit the crime if, acting with the state of mind required to
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establish liability with respect to the attendant circumstances specified in the definition of
the crime, he or she intentionally engages in conduct which is a substantial step in a
course of conduct intended or known to cause such a result.
(3) Conduct shall not be considered a substantial step under this section unless it
is strongly corroborative of the defendant’s criminal intent.
Malik’s argument that there was insufficient evidence to support a finding that he
committed attempted robbery focuses on Ennis’ testimony that Malik did not say anything to him
or the others during the incident and was not the individual holding the gun. Although Malik was
not the individual with the gun or the one making verbal demands to Ennis, the juvenile court
could find that Malik committed the crime of attempted robbery as the principal offender or as an
aider or abettor. Under Neb. Rev. Stat. § 28-206 (Reissue 2008), “[a] person who aids, abets,
procures, or causes another to commit any offense may be prosecuted and punished as if he were
the principal offender.”
An information charging a defendant with a specific crime gives the defendant adequate
notice that he or she may be prosecuted for the crime specified or as having aided and abetted the
commission of the crime specified. State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012). The
Nebraska Supreme Court has also stated that one can be convicted of aiding and abetting an
attempted crime. Id. Although this case involved an adjudication in juvenile court rather than a
criminal proceeding, we take guidance from the criminal laws of this state. In re Interest of
Adrian B., 11 Neb. Ct. App. 656, 658 N.W.2d 722 (2003).
Section 28-206 does not define aiding and abetting as a separate crime. State v. Kitt,
supra. The Nebraska Supreme Court has stated that “aiding and abetting is simply another basis
for holding one liable for the underlying crime.” Id., quoting State v. Dixon, 282 Neb. 274, 295,
802 N.W.2d 866, 886 (2011). By its terms, § 28-206 provides that a person who aids or abets
may be prosecuted and punished as if he or she were the principal offender. State v. Kitt, supra.
The Supreme Court has stated that aiding and abetting requires some participation in a criminal
act and must be evidenced by some word, act, or deed. Id. No particular acts are necessary, nor is
it necessary that the defendant take physical part in the commission of the crime or that there was
an express agreement to commit the crime. Id. Mere encouragement or assistance is sufficient.
Id.
Ennis’ testimony indicated that four individuals came up behind him as a group. They all
stood together while one of them pointed a gun at Ennis and demanded his personal property.
When a car came, all four individuals ran off together and were found together a short time later.
Ennis identified Malik as one the individuals who approached him and stood within a few
feet of him at the same time as the individual holding the gun with the two others. Ennis testified
that Malik approached him in a threatening way by standing close to him with an individual
Malik was associated with who was making demands at gunpoint. Ennis stated that based on the
actions of the four individuals, including Malik, they were acting together as a group. Although
Malik did not display a gun or say anything, he assisted in the attempt to rob Ennis by helping
surround Ennis while the individual with the gun demanded his personal property. His actions
indicated he was part of the group and that he was participating in the crime. The evidence was
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sufficient to support the juvenile court’s finding that Malik committed the offense of attempted
robbery.
CONCLUSION
Based upon our de novo review, we conclude that the State adduced sufficient evidence
to support the adjudication. Accordingly, the order of the juvenile court is affirmed.
AFFIRMED.
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