State v. Simmons ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462State of Nebraska, appellee, v.
Bradley A. Simmons, appellant.
___ N.W.2d ___
Filed December 8, 2015. No. A-15-171.
1. Rules of Evidence: Appeal and Error. When 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. Due Process: Evidence: Police Officers and Sheriffs. Unless a crimi-
nal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due
process of law.
3. Judgments: Due Process: Evidence: Appeal and Error. A trial court’s
conclusion that the government did not act in bad faith in destroying
potentially useful evidence, so as to deny the defendant due process, is
reviewed for clear error.
4. Evidence: Proof. Because of its obvious importance, where mate-
rial exculpatory evidence is destroyed, a showing of bad faith is not
necessary.
5. Assault: Words and Phrases. Pepper spray is a dangerous instrument
as defined by Nebraska law.
6. ____: ____. A dangerous instrument is any object which, because of its
nature and the manner and intention of its use, is capable of inflicting
bodily injury.
Appeal from the District Court for Johnson County: Daniel
E. Bryan, Jr., Judge. Affirmed.
Timothy W. Nelsen, Johnson County Public Defender, for
appellant.
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Decisions of the Nebraska Court of A ppeals
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STATE v. SIMMONS
Cite as 23 Neb. App. 462Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Pirtle, R iedmann, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
After a bench trial, Bradley A. Simmons was found guilty
of one count of assault on an officer in the second degree,
a Class II felony. He appeals his conviction, asserting that
certain evidence should not have been introduced and that
the pepper spray used during the altercation should not have
been considered a dangerous instrument within the meaning
of the Nebraska Revised Statutes. For the reasons that follow,
we affirm.
BACKGROUND
Simmons, an inmate at Tecumseh State Correctional
Institution (TSCI), was charged by information with one count
of assault on an officer in the second degree. The information
alleged that on February 6, 2013, he caused bodily injury to
an employee of the Department of Correctional Services while
the employee was engaged in the performance of his official
duties. Specifically, he was charged with causing bodily injury
to caseworker David Daire with pepper spray. The incident
took place at TSCI.
Simmons filed a motion in limine on October 6, 2014.
Prior to Simmons’ motion, the State notified Simmons’ coun-
sel that the department no longer had possession of the physi-
cal evidence of the incident, because the pepper spray and the
surveillance video depicting the incident were destroyed prior
to the case’s being referred to the Johnson County Attorney
for prosecution. Simmons’ motion requested that the State
not be allowed to present testimony from the department’s
employees, because they had “intentionally destroyed evi-
dence which may be mitigating to [Simmons] through their
own actions and deeds.”
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462On the date of the hearing on Simmons’ motion in limine,
the parties stipulated that the events resulting in the criminal
filing in this case took place on February 6, 2013, and that the
department did not notify the county attorney of the case until
February 2014. They stipulated that the events were recorded,
but that the department routinely destroys all video at least 6
months from the date it is recorded. The joint stipulation noted
Simmons believed the video contained exculpatory evidence
that would help his defense.
The State asserted the video evidence was destroyed as
part of the normal video maintenance routine. The State also
asserted the evidence was not exculpatory nor was it unavail-
able due to bad faith. After the hearing, the district court
denied the motion in limine. The court reasoned that the State
disclosed the lack of the video without any formal discovery
order and that the State did not act in bad faith in failing to
preserve evidence. Further, the court found that, although
the video could contain potentially useful information, there
was no showing that the video had any exculpatory value,
and the parties could obtain comparable evidence from wit-
ness testimony.
The matter was tried before the district court for Johnson
County on January 26 and February 3, 2015.
Daire testified that on February 6, 2013, he observed
Simmons at the far end of the housing unit walking toward
the “inmate telephones.” When Daire saw Simmons again,
he was carrying a bag of potato chips and Daire suspected
they were not obtained in a way that is permitted. Daire
told Simmons to give him the bag of chips. When he did
not, Daire told Simmons he intended to search his cell and
told him to leave the cell. At that time, Simmons was “lying
on the top bunk of the cell.” Daire testified that Simmons
jumped down off of the bunk, grabbed the bag of chips,
and attempted to leave the cell. When Daire asked him to
leave the chips, Simmons moved rapidly and said to Daire,
“Let’s go.” Daire radioed that there was an inmate behaving
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462aggressively and started to back out of the cell. Daire tes-
tified that Simmons began to swing his arms at him with
closed fists. When Daire radioed a second time, Simmons
grabbed the radio microphone from his hand and ripped it off
of the cord. Daire said Simmons made contact and struck him
around the head and ribs.
Daire said he looked for an opportunity to close the dis-
tance between them so Simmons could no longer swing at
him. He grabbed Simmons around the waist and pulled him
to the ground. During the struggle, Simmons reached over
Daire’s shoulders and grabbed a canister of pepper spray off of
Daire’s person, sprayed Daire in the face, and said, “See how
this feels.” Daire testified Simmons sprayed the pepper spray
directly into his eyes, causing him to experience an extreme
burning sensation. He was unable to open his eyes because
they were tearing up rapidly and because of the pain. Daire
was assisted by a case manager who responded to his radio
call, and Simmons was secured. Daire was escorted to the
staff bathroom to flush his eyes out with running water, then
he was escorted to the administration area to shower and wash
off the remaining pepper spray. He was taken to a hospital
for followup.
Pepper spray is the first line of defense carried by casework-
ers and corrections officers when in contact with inmates. A
department lieutenant testified that the pepper spray used by
the department is a 2-percent solution, which is a weaker solu-
tion than that carried by most law enforcement officers. The
TSCI warden testified that the pepper spray canister allegedly
used by Simmons was taken into evidence, but that it was
not retained. He testified that the canister would have been
weighed to determine whether it was used, but that such evi-
dence is not a part of the record.
Simmons testified that he had a receipt for the purchase of
the bag of chips. He asserted that he never put his hands on
Daire and that he did not spray Daire with the pepper spray.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462A video of security footage on the day of the incident
was eventually discovered, and the parties stipulated that
the video, marked exhibit 2, was that video. It was received
without objection. The video reflects the beginning of the
altercation, showing Daire backing out of a cell and Simmons
swinging at him with his left fist, before they moved out of
camera range.
The court found the State met its burden of proof, and
Simmons was found guilty of assault on an officer in the sec-
ond degree, a Class II felony. Simmons waived his right to
a presentence investigation, and he was sentenced the same
day to a term of 3 years’ imprisonment. His sentence was to
run consecutively to the sentences he was serving at the time.
Simmons timely appealed.
ASSIGNMENTS OF ERROR
Simmons asserts that the department intentionally disposed
of relevant evidence and that the district court erred by
admitting evidence produced by the department. Simmons
also asserts the district court erred in finding that the pepper
spray allegedly used by Simmons was a dangerous instru-
ment within the meaning of Neb. Rev. Stat. § 28-930 (Cum.
Supp. 2012).
STANDARD OF REVIEW
[1] When the Nebraska Evidence Rules commit the eviden-
tiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Dominguez, 290 Neb. 477, 860
N.W.2d 732 (2015).
ANALYSIS
Admission of Evidence.
Simmons asserts the district court erred in admitting evi-
dence from the department’s employees after the department
had intentionally disposed of relevant evidence in the case. In
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462his brief, Simmons states his argument is that “first the evi-
dence destroyed by the [d]epartment . . . showed the incident
as it happened, and further the OC Spray canister not being
available for fingerprinting is clearly materially exculpatory
evidence.” Brief for appellant at 7.
Simmons asserts that employees of the department should
not have been allowed to testify because the department
destroyed potentially exculpatory evidence. Where there has
been a pretrial ruling regarding the admissibility of evidence,
a party must make a timely and specific objection to the
evidence when it is offered at trial in order to preserve any
error for appellate review; thus, when a motion in limine to
exclude evidence is overruled, the movant must object when
the particular evidence which was sought to be excluded by the
motion is offered during trial to preserve error for appeal. State
v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014). Simmons’
motion in limine sought to prevent the State from present-
ing witnesses who were employees of the department, and
his motion was overruled. At trial, Simmons did not make a
specific objection to the testimony or evidence presented, and
he did not renew his motion in limine until the close of all of
the evidence. Therefore, we find he did not timely renew his
motion in limine, and this issue was not properly preserved
for appeal.
[2-4] It also appears that Simmons may be asserting on
appeal that he was prejudiced because the pepper spray can-
ister used by Simmons was not available. In Nebraska, unless
a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law. State v. Hashman, 20
Neb. App. 1, 815 N.W.2d 658 (2012). A trial court’s conclu-
sion that the government did not act in bad faith in destroying
potentially useful evidence, so as to deny the defendant due
process, is reviewed for clear error. Id. Because of its obvious
importance, where material exculpatory evidence is destroyed,
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462a showing of bad faith is not necessary. Id. Where evidence
that is destroyed is only potentially useful, a showing of bad
faith is required.
Following Simmons’ motion in limine, the trial court found
that the video and canister, which were unavailable at the
time, were potentially useful evidence, but there was no
showing of bad faith in the department’s failure to preserve
this evidence. Simmons asserts the pepper spray canister
would have been material exculpatory evidence if it had been
available for fingerprinting; thus, a showing of bad faith was
not necessary.
At trial, the State provided video evidence of Simmons
swinging at Daire, and witnesses testified that Simmons struck
Daire and sprayed him with pepper spray. Although a finger-
print analysis of the canister could have been helpful, there
was ample evidence that Simmons dispensed the pepper spray
during the altercation with Daire. There is no showing that
the department acted in bad faith in destroying the canister.
Thus, the district court did not abuse its discretion in allowing
the State to present the evidence. This assignment of error is
without merit.
Dangerous Instrument.
According to the Nebraska Revised Statutes, a person com-
mits the offense of assault on an officer if he or she inten-
tionally, knowingly, or recklessly causes bodily injury with a
dangerous instrument to a peace officer, a probation officer, or
an employee of the department, and the offense is committed
while such employee is engaged in the performance of his or
her official duties. § 28-930(1).
[5] While the appellate courts of Nebraska have not
addressed the specific issue of whether pepper spray is a dan-
gerous instrument, several other states have concluded that it
can be considered a dangerous instrument capable of causing
bodily injury. See, U.S. v. Bartolotta, 153 F.3d 875 (8th Cir.
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STATE v. SIMMONS
Cite as 23 Neb. App. 4621998) (serious bodily injury did result from use of mace);
People v. Blake, 117 Cal. App. 4th 543, 557, 11 Cal. Rptr. 3d
678, 688 (2004) (“[m]ost courts have found tear gas, mace or
pepper spray to be dangerous or deadly weapons capable of
inflicting great bodily injury”); State v. Ovechka, 292 Conn.
533, 975 A.2d 1 (2009) (injuries suffered by victim supported
finding that pepper spray is dangerous instrument or dangerous
weapon); Handy v. State, 357 Md. 685, 745 A.2d 1107 (2000)
(victim’s temporary blindness and burning in his eye was suffi-
cient evidence of serious physical harm to render pepper spray
used in robbery as dangerous weapon). For the reasons stated
below, we find that pepper spray is a dangerous instrument as
defined by Nebraska law.
[6] Nebraska case law has defined a dangerous instrument
as “any object which, because of its nature and the man-
ner and intention of its use, is capable of inflicting bodily
injury.” State v. Romo, 12 Neb. App. 472, 476, 676 N.W.2d
737, 741 (2004). It might, for example, be a piece of lumber,
a hammer, or many other physical objects. State v. Hatwan,
208 Neb. 450, 303 N.W.2d 779 (1981). For the purposes of
the Nebraska Criminal Code, the Nebraska Revised Statutes
define bodily injury as “physical pain, illness, or any impair-
ment of physical condition.” Neb. Rev. Stat. § 28-109(4)
(Reissue 2008).
Simmons asserts the evidence admitted at trial showed the
department does not allow dangerous instruments or weapons
to be used in the housing units at TSCI. Therefore, he asserts,
it follows that the pepper spray commonly carried by the case-
workers and employees at TSCI cannot be considered a dan-
gerous instrument. He also asserts that the pepper spray did not
cause “bodily injury” because Daire suffered only temporary
pain, which could be treated with “a shower with baby soap.”
Brief for appellant at 7.
The pain caused to Daire, though temporary, clearly comes
within the definition of “bodily injury” as defined by the
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. SIMMONS
Cite as 23 Neb. App. 462statutes. After being sprayed with pepper spray, Daire expe-
rienced pain which impaired his ability to see for the period
of time that passed before he was able to rinse his eyes and
face. Further, the pepper spray used by Simmons was capable
of causing bodily injury, and was used in a way that did cause
injury, so it must come within the definition of a dangerous
instrument under the statutes. We find the district court did
not err in determining that the pepper spray was a dangerous
instrument within the meaning of § 28-930.
CONCLUSION
We find the district court did not err in allowing the State
to present evidence and in determining that the pepper spray
used by Simmons was a dangerous instrument as defined by
the Nebraska Revised Statutes.
A ffirmed.