State v. Case , 304 Neb. 829 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    01/24/2020 09:07 AM CST
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    304 Nebraska Reports
    STATE v. CASE
    Cite as 
    304 Neb. 829
    State of Nebraska, appellee, v.
    Trevor S. Case, appellant.
    ___ N.W.2d ___
    Filed January 17, 2020.   No. S-18-1197.
    1. Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    2. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
    cretion with respect to sanctions involving discovery procedures, and
    their rulings thereon will not be reversed in the absence of an abuse
    of discretion.
    3. Convictions: Evidence: Appeal and Error. Regardless of whether
    the evidence is direct, circumstantial, or a combination thereof, and
    regardless of whether the issue is labeled as a failure to direct a verdict,
    insufficiency of the evidence, or failure to prove a prima facie case, the
    standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
    error, if the evidence admitted at trial, viewed and construed most favor-
    ably to the State, is sufficient to support the conviction.
    4. Jury Instructions: Proof: Appeal and Error. To establish reversible
    error from a court’s refusal to give a requested instruction, an appel-
    lant has the burden to show that (1) the tendered instruction is a correct
    statement of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction.
    5. Self-Defense: Jury Instructions. A trial court is required to give a self-
    defense instruction where there is any evidence in support of a legally
    cognizable theory of self-defense.
    6. Self-Defense: Jury Instructions: Evidence. It is only when the evi-
    dence does not support a legally cognizable claim of self-defense or the
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    evidence is so lacking in probative value, so as to constitute a failure
    of proof, that a trial court may properly refuse to instruct a jury on a
    defendant’s theory of self-defense.
    7.   Self-Defense. To successfully assert the claim of self-defense, a defend­
    ant must have a reasonable and good faith belief in the necessity of
    using force and the force used in defense must be immediately necessary
    and justified under the circumstances.
    8.   ____. If a defendant has unjustifiably placed himself or herself in harm’s
    way, a court may properly find that such facts do not support a lawful
    claim of self-defense.
    9.   Criminal Law: Pretrial Procedure. Discovery in a criminal case is
    generally controlled by either a statute or a court rule.
    10.   Motions for Continuance: Evidence: Waiver. If a continuance would
    have been a sufficient remedy for a belated disclosure in violation of
    Neb. Rev. Stat. § 29-1912 (Reissue 2016), a defendant who fails to
    request a continuance waives any rights he or she may have had pursu-
    ant to § 29-1912.
    11.   Criminal Law: Evidence: Appeal and Error. When a criminal defend­
    ant challenges the sufficiency of the evidence upon which a conviction
    is based, 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.
    Appeal from the District Court for Lancaster County: Susan
    I. Strong, Judge. Affirmed.
    Joseph D. Nigro, Lancaster County Public Defender, and
    Matthew Meyerle for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Trevor S. Case appeals his conviction and sentence in the
    district court for Lancaster County for assault by a confined
    person. A jury found Case guilty, and the court thereafter
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    STATE v. CASE
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    304 Neb. 829
    sentenced him to 365 days in jail followed by postrelease
    supervision for 12 months. Case claims on appeal that the
    court erred when it refused his proposed self-defense instruc-
    tion and when it admitted a recording of a telephone call he
    made from jail. He also claims there was not sufficient evi-
    dence to support his conviction. We affirm Case’s conviction
    and sentence.
    STATEMENT OF FACTS
    On February 16, 2018, Case, who was confined in the
    Lancaster County jail, got into an altercation with Kenneth
    Burley, who was also confined in the jail and who had been
    a cellmate with Case. As a result of the altercation, the State
    charged Case with a Class IIIA felony, assault by a confined
    person, in violation of Neb. Rev. Stat. § 28-932 (Reissue
    2016).
    On the first day of trial, the court considered certain pretrial
    motions. Among those was Case’s objection to admission of
    a recording of a telephone call he had made shortly after the
    altercation and in which he made certain statements regard-
    ing the event. Case objected to admission of the recording
    because the State had provided the recording to Case only the
    day before trial, which he noted was well beyond the time the
    State was required to provide evidence pursuant to the court’s
    discovery order. Case asserted that the recording fit within the
    scope of the discovery statute, Neb. Rev. Stat. § 29-1912(1)(f)
    (Reissue 2016), which requires production of “[d]ocuments,
    papers, books, accounts, letters, photographs, objects, or other
    tangible things of whatsoever kind or nature which could be
    used as evidence by the prosecuting authority.” The State
    contended that the recording was not subject to § 29-1912.
    The State further contended that it had become aware of the
    existence of the recording only the night before it provided it
    to Case and that because it had provided the evidence to Case,
    it did not think that “the remedy here is that it be excluded”
    but that the defense, if it thought it needed additional time,
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    “could ask for a continuance.” After hearing the arguments of
    the parties, the court overruled Case’s objection. Case did not
    thereafter move for a continuance.
    The first witness for the State was William McGlothlin,
    who was a security manager for the Lancaster County jail. He
    testified regarding his duties, which included keeping records
    of persons confined in the jail, maintaining surveillance videos
    recorded in the jail, and maintaining recordings of telephone
    calls made from the jail by inmates. Based on knowledge
    obtained in performing these duties, McGlothlin testified that
    both Case and Burley were inmates at the jail on February
    16, 2018, and that on that date, they were both in the same
    housing unit, which contained 32 cells. McGlothlin provided
    foundation for admission of a disc containing surveillance
    video recordings that showed the altercation between Case and
    Burley; the disc contained video from two cameras showing
    the incident from two different angles. Case did not object to
    admission of the video recordings.
    McGlothlin also provided foundation for admission of the
    recording of a telephone call made from the jail on February
    19, 2018. McGlothlin testified that the call was made using a
    personal identification number that was specific to Case. Case
    objected to admission of the recording of the telephone call on
    the basis of foundation. Case maintained that it had not been
    established that the voice on the call was his. The court over-
    ruled the objection. Case also renewed the objection he had
    made prior to trial and continues to assert on appeal based
    on the State’s failure to comply with the discovery order. The
    court also overruled that objection and admitted the recording
    of the telephone call into evidence. Although both the video
    recordings and the telephone recording were admitted into evi-
    dence during McGlothlin’s testimony, neither was published to
    the jury at that time.
    On cross-examination by Case, McGlothlin testified that
    Case and Burley had been cellmates between December 19
    and 31, 2017. McGlothlin testified generally regarding reasons
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    inmates might be moved from one cell to another, but he did
    not testify regarding reasons Case and Burley were no ­longer
    assigned to the same cell. McGlothlin also testified that Case
    had had no significant disciplinary problems prior to the
    February 16, 2018, incident.
    The State’s next witness was Zachary Yost, a correctional
    officer who was working at the Lancaster County jail on
    February 16, 2018. On that date, he was assigned to the hous-
    ing unit in which both Case and Burley were housed. Yost
    testified that he was at the officer station in the unit when
    he heard a noise, looked up, and witnessed a physical alter-
    cation between Case and Burley. At the time he looked up,
    both were “throwing closed-fist punches.” Yost got up from
    his desk, called for assistance, and made his way toward the
    altercation, giving loud verbal commands for the two to stop
    fighting and for the other inmates to return to their cells. Yost
    testified that when he first gave the commands, both Case
    and Burley remained engaged in a physical altercation. When
    he approached the two, Yost “used [his] right arm to deflect
    . . . Case from . . . Burley.” Burley had stopped throwing
    punches, but Case continued. Case thereafter “stopped throw-
    ing punches, but . . . still continued to posture and advance
    on . . . Burley.” At that time, Burley “had put his hands down
    and had turned” away. When additional staff arrived, Yost
    placed Burley in restraints while someone else placed Case in
    restraints. Both were escorted out of the housing unit and Yost
    did not have further interaction with either Case or Burley that
    day. Yost further testified that he had been working the 2 or 3
    days prior to the incident and that in the days leading up to the
    altercation, Case had not told him that he was having any sort
    of difficulties with Burley.
    The surveillance video that had been admitted into evidence
    during McGlothlin’s testimony was played for the jury during
    Yost’s testimony. Yost testified that he had reviewed the video
    and that it accurately depicted the altercation between Case and
    Burley. During the playing of the video, counsel for the State
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    occasionally paused the video to ask Yost questions regarding
    what was depicted. Yost noted that the video included footage
    from two cameras that showed different angles on the alterca-
    tion and that one of the two did not show the beginning of
    the altercation.
    Yost testified that it was common for inmates to walk in
    circles around the housing unit as some inmates were depicted
    doing in the video. Yost identified Burley as a person in the
    video who was walking counterclockwise with another uniden-
    tified inmate. At a later point in the video, Yost identified Case
    as the person who walked out of one of the cells on the outer
    edges of the area depicted; Yost testified that Case was coming
    out of his own cell. The video shows that Case came out of
    his cell and proceeded in a clockwise direction directly toward
    Burley. Yost testified that in order to be let out of the cell, Case
    would have needed to request an officer at the control kiosk to
    allow him to do so. Yost further identified Case and Burley as
    the persons in the video who began fighting and himself as the
    person who came to intervene.
    The recording of the telephone call was also played for the
    jury during Yost’s testimony. Prior to the recording’s being
    played, Yost testified that he had listened to the recording and
    that he was familiar with Case’s voice. Yost testified that the
    voice of the person placing the call was Case’s and that one of
    the voices heard during the call was Case’s. In the recording,
    the person identified by Yost as Case appeared to be discussing
    the altercation with Burley with an unidentified person. At one
    point, the other person asked, “Did he attack you or did you
    go for him?” and the person identified as Case responded, “I
    went for him.”
    The State’s next witness was Burley. He testified that on
    February 16, 2018, he was an inmate in the Lancaster County
    jail. He was “doing laps” and talking with another inmate when
    Case came up to them and said, “‘Stop hitting my door.’”
    Burley denied having hit Case’s door. According to Burley,
    after Case made the accusation, Burley “proceeded to walk off ”
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    and Case “start[ed] viciously attacking [him] . . . kept com-
    ing towards [him], consistently, persistently.” Burley testified
    that he backed up from Case and told him he did not want to
    fight. When asked who threw the first punch in the altercation,
    Burley testified, “He attacked me viciously, striking me in the
    face, as well as throwing me to the ground. People were trying
    to break it up, and he’s still coming towards me . . . .”
    Burley also testified regarding injuries he received in the
    altercation. The injuries included swelling in his face, the back
    of his head, and near his ear, as well as his ankle. Burley fur-
    ther testified that he and Case had previously been cellmates
    for “several days” and that Burley had been moved to a dif-
    ferent cell. Case was serving as an inmate porter, and Burley
    testified that the reason for the move was because he and Case
    kept different hours. Burley explained that he needed to be in
    a bottom bunk because of a disability and that therefore, the
    move would allow him to get better sleep. Burley testified that
    prior to the altercation, he had not had any issues with Case
    and had not bullied or threatened Case.
    The State played the surveillance video during Burley’s
    testimony and asked him questions about what was depicted.
    Burley identified Case as a person depicted in the video and
    stated that Case could be seen coming “[s]traight out the
    cell . . . coming straight towards me.” Burley testified that
    at the point when the altercation began, he “tried to take a
    step away from [Case].” When counsel for the State noted
    that it appeared in the video that Burley “didn’t take a step
    backwards” but instead “took a step forward,” Burley testified
    that he was “trying to walk away, away from him, get away
    from this gentleman.” Burley testified that after the initial
    punches, he was “bouncing back, still constantly bouncing
    back, and [Case was] still persistently coming towards [him].”
    Burley noted that at one point, he was “on the ground” with
    Case “on top of [him].” He testified that he ended up on
    the ground because of the “force of [Case’s] punches and
    his anger, his rage.” When asked about some movements he
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    made that were depicted in the video as occurring before
    the altercation began, Burley testified that he was show-
    ing the person with whom he was walking “how a previ-
    ous fight [there] happened” but that he was not involved in
    that previous fight.
    The final witness in the State’s case in chief was John
    Winter, a Lincoln police officer who investigated the alterca-
    tion between Case and Burley. As part of his investigation,
    Winter had watched the surveillance video and had inter-
    viewed both Case and Burley. Winter testified that photographs
    that had been admitted into evidence accurately depicted inju-
    ries to both Case and Burley.
    Winter testified that when he interviewed Case, he had
    advised Case of his Miranda rights and Case had waived his
    right to counsel before talking to Winter. Winter testified that
    Case said that he and Burley had previously been cellmates and
    that he “had been having issues with . . . Burley, in the sense
    that . . . Burley was making statements . . . that were untrue
    about him.” Case further described to Winter that Burley had
    been “coming by his cell door and lightly tapping on the cell
    door, just loud enough to cause [Case] annoyance, but not loud
    enough to draw any more attention.” Case told Winter that
    Burley was “sort of a bully” and that he had told correctional
    staff about issues he had had with Burley. Winter testified that
    Case said that because staff had “failed to take any action” to
    fix his issues with Burley, on the day of the altercation Case
    determined “he was going to go handle the situation himself
    and that’s why he ended up speaking with . . . Burley.” After
    making that statement, Case declined to elaborate in more
    detail regarding the altercation.
    After the State rested its case, Case made a motion to dis-
    miss. The court overruled the motion to dismiss.
    Case chose to testify in his own defense. He testified that he
    and Burley had been cellmates for “two to three weeks” and
    that in that time, a relationship had been established in which
    Burley was “demanding” of Case. Case testified that Burley
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    had let him know that Burley “was a gang member” and had a
    certain “ranking in his gang.”
    While in the Lancaster County jail, Case had been selected
    to work as a porter with maintenance and cleaning duties.
    He testified that the position gave him greater access than
    other inmates to items such as “[c]leaning supplies, foods,
    [and] laundry” and that this access sometimes prompted other
    inmates to ask for favors. Case testified that Burley would
    try to get Case to get him items but that Case would resist
    because to do so would be a rule violation and he valued his
    position as a porter. Case testified that his position as a porter
    required him to work at night until 2 a.m. and that his hours
    became an issue with Burley because they conflicted with his
    sleep schedule. Case stated that because of his hours, Burley
    “felt . . . that [Case] owed him things, and [that Case] needed
    to . . . give the demanded things that he wanted.” Case testi-
    fied that Burley’s demands made him feel “threatened” and
    “fearful for [his] physical safety.” Case testified that one of
    the ways Burley intimidated him was to talk about how he
    used to be a boxer and to demonstrate his skills by shadow
    boxing. Case testified that he had made certain corrections
    officers, including Jordan Malcolm, aware of his problems
    with Burley but that he had never filed a formal grievance
    or complaint because he feared repercussions from Burley.
    Case testified that Burley was eventually moved to a differ-
    ent cell because of an incident in which Burley made threats
    to Case.
    Case testified that after Burley was moved to a differ-
    ent cell in the same housing unit, Burley continued to make
    subtle threats and to bully him. Case testified that several
    days prior to the altercation with Burley, he had seen Burley
    being physically threatening to another inmate. Case testified
    that on February 16, 2018, he had been getting the sense that
    Burley was going to follow through on threats he had been
    making toward Case. That afternoon, Case was trying to sleep
    in his cell and heard someone walking by his cell, “trying to
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    — to get [his] attention or to disrupt or to annoy [his] sleep.”
    Looking out of his cell, he saw Burley walking with another
    inmate, and, thinking it was Burley trying to get his attention
    or annoy him, he came out of his cell and “walked over to him,
    with no demeanor of intent of doing anything, other than just
    asking.” Case asked why Burley was tapping on his door, and
    Burley “played coy.” Case then got the sense that Burley was
    going to hit him, based on Burley’s “look, his body language.”
    Case testified that Burley then initiated physical contact with
    a motion that Case described as “a jab . . . tuck his shoulder
    underneath, walk into [Case], step towards [Case].” Case was
    “startled,” and he pushed Burley. This resulted in a series of
    punches between the two.
    Case testified that his actions, including “taking [Burley]
    to the ground,” were because he “had no other choice but
    to be . . . defenseful [sic] in that manner, without hitting or
    closed fisting.” Case testified that he took his shirt off during
    the altercation because Burley was using the shirt to pull him
    down. He also testified that he did not immediately respond to
    Yost’s commands to stop fighting because “the moment was
    very heated” and he “did not trust Burley in any type of situ-
    ation.” Case testified that “Yost had no control over that sit­
    uation” and that he thought that because he did not feel safe, he
    needed “to stand until an officer either puts cuffs on [Burley]
    or [himself].”
    Case testified regarding the recording of the telephone call
    that had been admitted into evidence and played during the
    State’s case. He testified that he had had several previous
    conversations with his mother to let her know about the situ-
    ation that was going on with Burley. He admitted that when
    she asked, “‘Did he attack you or did you go for him,’” he
    replied, “‘I went for him.’” But he testified that this was not
    a reference to his physically attacking Burley, but “more or
    less standing up” and “be[ing] forward with my approach
    with him.” Based on his communications with his mother, he
    believed that she understood it in the same way. And contrary
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    to Winter’s testimony, Case denied having said that he had
    decided to handle the situation with Burley himself.
    Later, on redirect, defense counsel played the surveillance
    video and asked Case questions about what was depicted.
    Counsel referred to a point in the video where Burley is seen
    making motions that counsel described as “shadow boxing.”
    Case testified that he saw those actions from his cell and that it
    looked to him like “a threat, maybe a pre-warning.” Following
    his testimony, Case rested his defense without presenting fur-
    ther testimony or other evidence.
    In rebuttal, the State called Malcolm as a witness. Malcolm
    testified that he was a correctional officer at the Lancaster
    County jail and that he had known Case as an inmate dur-
    ing the period from December 2017 through February 2018.
    Malcolm supervised Case in his work as a porter, and as a
    result, he likely had more interaction with Case than with
    other inmates. Malcolm testified that he would sometimes
    have conversations with Case when no other inmates were
    around, but he testified that Case had never discussed any
    problems he was having with Burley and had never con-
    fided that Burley was targeting him for assault. Malcolm
    testified that he had never witnessed Burley bullying Case
    and that if he had witnessed such behavior or if Case had
    reported such behavior, he would have documented it in
    a report according to procedure rather than attempting to
    handle the situation himself. Malcolm further testified that if
    Case had reported being threatened by Burley, he could have
    been placed in protective custody. On cross-examination,
    Malcolm testified, inter alia, that inmates in protective cus-
    tody were subject to more restrictions and more time in their
    cells than other inmates. After the State rested its rebuttal,
    Case renewed his motion to dismiss and the court overruled
    the motion.
    At the jury instruction conference, the main issue of discus-
    sion was Case’s proposed instruction on self-defense. Case
    proposed the following instruction:
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    Case acted in self-defense if:
    1. . . . Burley used or threatened force against . . .
    Case; and
    2. Under the circumstances as they existed at the
    time, . . . Case reasonably believed that the force he used
    against . . . Burley was immediately necessary to protect
    himself against any such force used or threatened by
    . . . Burley.
    The fact that . . . Case [may] have been wrong in
    estimating the danger does not matter so long as there
    was reasonable basis for he believed [sic] and he acted
    reasonably in response to those beliefs.
    The State opposed Case’s proposed instruction and argued
    that the evidence showed that Case had unjustifiably placed
    himself in harm’s way. The State noted that Case’s own testi-
    mony indicated that when he perceived a threat form Burley,
    “he [left] his cell and immediately [went] to talk with . . .
    Burley about it. And then, in all less than a minute, this hap-
    pens.” The State argued that Case “could have easily stayed in
    his cell or he could have easily asked the correctional officer
    for assistance.” The State further argued that the alleged tap-
    ping on Case’s cell door was “probably annoying” but “not a
    threat of force” that would “justify him going on the offensive.”
    The State concluded that Case’s use of force was not “immedi-
    ately necessary and justifiable under the circumstances.”
    Case argued that precedent required the court to give a
    self-defense instruction where there was any evidence in sup-
    port of a legally cognizable theory of self-defense. He argued
    that there was evidence that he had gone into a dayroom,
    where he had a right to be, with the intention of speaking
    with Burley and not with the intention of starting a physical
    fight. He further argued that there was evidence that Burley
    made a move toward Case, which action gave rise to a claim
    of self-defense.
    The court refused Case’s proposed instruction on self-
    defense. The court stated, “I think the evidence shows that . . .
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    Case left his cell, went directly to confront . . . Burley, and I
    think no one’s testified that . . . Burley made the initial contact.
    It was . . . Case that made the initial contact. It was . . . Case
    that started the confrontation.”
    After the case was submitted to the jury. The jury returned
    a verdict finding Case guilty of assault by a confined person.
    The court accepted the verdict and thereafter sentenced Case
    to 365 days in jail followed by postrelease supervision for
    12 months.
    Case appeals his conviction and sentence.
    ASSIGNMENTS OF ERROR
    Case claims that the district court erred when it (1) refused
    his proposed self-defense instruction and (2) admitted the
    recording of the telephone call. He also claims there was not
    sufficient evidence to support his conviction.
    STANDARDS OF REVIEW
    [1] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision. State v. Bigelow, 
    303 Neb. 729
    , 
    931 N.W.2d 842
    (2019).
    [2] Trial courts have broad discretion with respect to sanc-
    tions involving discovery procedures, and their rulings thereon
    will not be reversed in the absence of an abuse of discretion.
    State v. Hatfield, ante p. 66, 
    933 N.W.2d 78
    (2019).
    [3] Regardless of whether the evidence is direct, circum-
    stantial, or a combination thereof, and regardless of whether
    the issue is labeled as a failure to direct a verdict, insuffi-
    ciency of the evidence, or failure to prove a prima facie case,
    the standard is the same: In reviewing a criminal conviction,
    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, and a conviction will
    be affirmed, in the absence of prejudicial error, if the evi-
    dence admitted at trial, viewed and construed most favorably
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    to the State, is sufficient to support the conviction. State v.
    Stubbendieck, 
    302 Neb. 702
    , 
    924 N.W.2d 711
    (2019).
    ANALYSIS
    Self-Defense Instruction.
    Case first claims that the district court erred when it refused
    his proposed self-defense instruction. In State v. Graham, 
    234 Neb. 275
    , 
    450 N.W.2d 673
    (1990), we stated that only where
    the jury could reasonably find that the defendant’s use of
    force was justified should the trial court instruct the jury on
    self-defense. We determine that the evidence did not support
    a self-defense instruction and that therefore, the court did not
    commit reversible error when it refused the instruction.
    [4] To establish reversible error from a court’s refusal to
    give a requested instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement
    of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s
    refusal to give the tendered instruction. State v. 
    Bigelow, supra
    .
    As discussed below, we determine that Case’s tendered instruc-
    tion on self-defense was not warranted by the evidence and that
    therefore, we need not consider whether the instruction was a
    correct statement of the law or whether Case was prejudiced by
    the court’s refusal to give the instruction.
    [5] We have held that a trial court is required to give a self-
    defense instruction where there is any evidence in support of a
    legally cognizable theory of self-defense. State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
    (1997). Case cites this proposi-
    tion and emphasizes that because of the “any evidence” lan-
    guage, the court was required to give his proposed self-defense
    instruction. In support of his argument, Case points to evidence
    to the effect that Burley had threatened him in the past; that
    in the days leading up to the incident, the threats had become
    more immediate; and that before Case threw his first punch,
    Burley had made a move toward Case that Case characterized
    as a “jab.”
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    [6] Although the evidence noted by Case could be favor-
    able toward proving a theory of self-defense, the proposition
    relied on by Case must be read in its entirety. It is not enough
    to merely show “any evidence” of self-defense to support an
    instruction thereon. Instead, the defendant must show “any
    evidence in support of a legally cognizable theory of self-
    defense.” 
    Id. at 607,
    567 N.W.2d at 292. As we further stated
    in Kinser:
    It is only when the evidence does not support a legally
    cognizable claim of self-defense or the evidence is so
    lacking in probative value, so as to constitute a failure of
    proof, that a trial court may properly refuse to instruct a
    jury on a defendant’s theory of 
    self-defense. 252 Neb. at 606-07
    , 567 N.W.2d at 292.
    Although the evidence noted by Case could be part of a
    legally cognizable case of self-defense, the court needed to
    determine without deciding factual issues whether the evidence
    would support self-defense under Nebraska law. We therefore
    review aspects of self-defense under Nebraska law that are rel-
    evant to assessing the evidence in this case.
    [7] Self-defense is a statutorily defined affirmative defense
    in Nebraska. State v. Smith, 
    284 Neb. 636
    , 
    822 N.W.2d 401
    (2012). Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides
    in relevant part that “the use of force upon or toward another
    person is justifiable when the actor believes that such force
    is immediately necessary for the purpose of protecting him-
    self against the use of unlawful force by such other person
    on the present occasion.” We have interpreted § 28-1409 to
    mean that to successfully assert the claim of self-defense, a
    defendant must have a reasonable and good faith belief in the
    necessity of using force and the force used in defense must be
    immediately necessary and justified under the circumstances.
    State v. Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
    (1999); State
    v. Marshall, 
    253 Neb. 676
    , 
    573 N.W.2d 406
    (1998); State v.
    Kinser, supra; State v. Graham, 
    201 Neb. 659
    , 
    271 N.W.2d 456
    (1978).
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    [8] Extrapolating from the requirement that the force used
    must be “justified under the circumstances,” in a case involv-
    ing a conviction for assault by a confined person, we stated,
    “If a defendant has unjustifiably placed himself or herself in
    harm’s way, a court may properly find that such facts do not
    support a lawful claim of self-defense.” State v. 
    Urbano, 256 Neb. at 201
    , 589 N.W.2d at 151. In Marshall, this court rea-
    soned that the defendant voluntarily put himself in a position
    of danger by going outside of his home to confront two men
    when there was no evidence that anything prevented him from
    remaining safely in his home and thereby avoiding the occa-
    sion to use force.
    Applying the law set forth above to the evidence in this
    case, we determine that the evidence did not support a legally
    cognizable theory of self-defense. In doing so, we apply the
    law as set forth in Urbano and Marshall. The district court
    rejected Case’s self-defense instruction because Case “made
    the initial contact.” As the undisputed facts recited earlier
    in our opinion show, Case left his cell and walked directly
    up to Burley. The record is clear that there was no evidence
    that Case was prevented from remaining safely inside his
    cell. Instead, he unjustifiably placed himself in harm’s way,
    and such facts do not support a legally cognizable theory of
    self-defense.
    Given the foregoing, we determine that the evidence did not
    support a self-defense instruction, and we conclude that the
    district court did not err when it refused the instruction pro-
    posed by Case.
    Recording of Telephone Call.
    Case next claims that the district court erred when it admit-
    ted the recording of the telephone call. Although at trial Case
    objected to the recording based on both foundation and the
    alleged discovery violation, his argument on appeal is lim-
    ited to the discovery violation. We conclude that because
    Case failed to move for a continuance after the evidence was
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    provided by the State, Case has waived his right to relief from
    the State’s belated production of the recording.
    [9,10] Discovery in a criminal case is generally controlled
    by either a statute or a court rule. State v. Hatfield, ante p.
    66, 
    933 N.W.2d 78
    (2019). Nebraska’s principal discovery
    statute, § 29-1912, sets forth a list of evidence that may be
    subject to discovery at the discretion of the trial court. The
    list includes a defendant’s prior criminal record, the names
    and addresses of witnesses on whose evidence the charge is
    based, and documents, papers, books, accounts, photographs,
    objects, or other tangible things of whatsoever kind or nature
    which could be used as evidence by the prosecuting authority.
    Neb. Rev. Stat. § 29-1919 (Reissue 2016) sets forth various
    remedies the court may employ when there is a claimed viola-
    tion of a discovery order: The court may (1) order such party
    to permit discovery or inspection of materials not previously
    disclosed, (2) grant a continuance, (3) prohibit a party from
    calling a witness not disclosed or introduce evidence not dis-
    closed, or (4) enter another order as it deems just under the
    circumstance. We have held that if a continuance would have
    been a sufficient remedy for a belated disclosure in violation
    of § 29-1912, a defendant who fails to request a continu-
    ance waives any rights he or she may have had pursuant to
    § 29-1912. State v. 
    Hatfield, supra
    .
    The record shows that immediately prior to the start of trial,
    the court considered Case’s objection to admission of the tele-
    phone recording on the basis that the State had provided the evi-
    dence to Case only the day before trial, which was well beyond
    the time the State was required to provide evidence pursuant to
    the court’s discovery order. There was some dispute between
    Case and the State as to whether the recording of the telephone
    call was evidence subject to discovery under § 29-1912 and
    the court’s discovery order. However, the State argued that
    because it had provided the evidence to Case, even if such late
    disclosure violated the discovery order, the proper remedy was
    not to exclude the evidence but to allow a continuance if Case
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    requested one. The court overruled Case’s objection, and Case
    did not thereafter request a continuance.
    While a court may order that a party not be permitted to
    offer evidence at trial which it failed to disclose, this court has
    stated a preference for a continuance in such situations. State
    v. 
    Hatfield, supra
    . In the circumstances of this case, a con-
    tinuance would have been a sufficient remedy if Case needed
    additional time to prepare a defense to the newly disclosed
    evidence. However, Case failed to request a continuance after
    the court overruled his objection, and therefore, he waived
    any right he may have had pursuant to § 29-1912. See State v.
    
    Hatfield, supra
    . We therefore conclude that the district court
    did not err when it admitted the recording of the telephone call
    into evidence.
    Sufficient Evidence to Support Conviction.
    Case finally claims that the evidence was not sufficient to
    support his conviction. We conclude that the evidence was
    sufficient.
    [11] When a criminal defendant challenges the sufficiency
    of the evidence upon which a conviction is based, 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. Montoya, ante p.
    96, 
    933 N.W.2d 558
    (2019).
    Case was charged with assault by a confined person as a
    Class IIIA felony in violation of § 28-932(1), which provides in
    relevant part: “Any person (a) . . . who is legally confined in a
    jail or an adult correctional or penal institution . . . and (b) who
    intentionally, knowingly, or recklessly causes bodily injury to
    another person shall be guilty of a Class IIIA felony . . . .”
    Case does not dispute that the evidence established that at the
    time of the altercation with Burley, he was legally confined in
    the Lancaster County jail. Instead, he argues that the evidence
    was not sufficient to establish that he intentionally, knowingly,
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    or recklessly caused bodily injury to Burley. Much of his
    argument in this regard is based on his theory that he acted in
    self-defense. However, as discussed above, the evidence did
    not support a legally cognizable theory of self-defense, and
    therefore, such argument does not establish that the evidence
    was not sufficient to support Case’s conviction.
    There was sufficient evidence, including the video record-
    ings, testimony by witnesses including Burley, and Case’s
    statement in the recording of the telephone call that he “went
    for” Burley, as well as his own testimony, to support a find-
    ing that Case physically assaulted Burley. There was also evi-
    dence that Burley suffered bodily injury and that such injury
    had been caused by Case’s physical assault. Case argues that
    Burley’s testimony in particular is not credible; however, we
    do not pass on the credibility of witnesses on appeal, State
    v. Stubbendieck, 
    302 Neb. 702
    , 
    924 N.W.2d 711
    (2019), and
    Burley’s testimony, if believed, as well as other evidence sup-
    ports the conviction. Case directs us to his testimony that his
    intent when he approached Burley was not to assault him but
    merely to talk to him. Case asserts that this testimony estab-
    lishes that he did not intentionally, knowingly, or recklessly
    cause bodily injury to Burley. Again, we do not review the
    jury’s credibility assessments of Case’s testimony regarding
    his intent. We conclude that there was sufficient evidence to
    support Case’s conviction.
    CONCLUSION
    We conclude that the district court did not err when it
    refused Case’s proposed self-defense instruction; nor did it err
    when it allowed the recording of the telephone call into evi-
    dence. We further conclude that there was sufficient evidence
    to support Case’s conviction. We therefore affirm Case’s con-
    viction and sentence.
    Affirmed.