State v. Stabler , 305 Neb. 415 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. STABLER
    Cite as 
    305 Neb. 415
    State of Nebraska, appellee, v.
    Eddy D. Stabler, appellant.
    ___ N.W.2d ___
    Filed March 27, 2020.    No. S-19-360.
    1. Jury Instructions. Whether the jury instructions given by a trial court
    are correct is a question of law.
    2. Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court resolves the questions independently of the conclusion
    reached by the lower court.
    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. 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.
    5. 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.
    6. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
    instruct on a lesser-included offense if (1) the elements of the lesser
    offense for which an instruction is requested are such that one cannot
    commit the greater offense without simultaneously committing the lesser
    offense and (2) the evidence produces a rational basis for acquitting the
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    defendant of the greater offense and convicting the defendant of the
    lesser offense.
    7. 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 a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    8. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation 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.
    9. ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment and includes the sentencing judge’s observation of the defendant’s
    demeanor and attitude and all the facts and circumstances surrounding
    the defendant’s life.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Joseph D. Nigro, Lancaster County Public Defender, Shawn
    Elliott, and Ella Newell, Senior Certified Law Student, for
    appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Heavican, C.J.
    INTRODUCTION
    Defendant Eddy D. Stabler was convicted by a jury of sec-
    ond degree assault and use of a deadly weapon to commit a
    felony. He was sentenced to a total of 15 to 25 years’ imprison-
    ment. He appeals. We affirm.
    FACTUAL BACKGROUND
    Stabler and the victim, Jacinda Stabler, were married and
    resided together on B Street in Lincoln, Nebraska, with their
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    STATE v. STABLER
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    four children and the children of each of them from previous
    relationships with other individuals. In April 2016, Jacinda
    filed for divorce. Stabler moved out of the family home to live
    with his sister, who resided elsewhere in Lincoln.
    At approximately this same time, Stabler began communi-
    cating via electronic messaging with a relative, Athea Stabler.
    Stabler and Athea were both members of the Omaha Tribe, and
    Athea lived in Macy, Nebraska.
    As part of a cooperation agreement, Athea testified at
    trial as to her role in Jacinda’s assault. According to Athea’s
    testimony, in Stabler’s messages, which she later deleted,
    Stabler told Athea that Jacinda had been “cheating on” him
    and asked Athea whether she would “handle the situation.”
    Though by all indications Athea did not know Jacinda, she
    agreed to help Stabler because she viewed Jacinda as a threat
    to the family.
    On May 28, 2016, Athea came to Lincoln to attend an
    event at a community center. While at this event, Athea com-
    municated with Stabler, again via electronic messaging, who
    wondered if “she” was at the event. Athea took “she” to mean
    Jacinda. Athea told Stabler that “she” was not in attendance.
    Stabler then asked whether Athea was staying overnight. Athea
    indicated that she was driving back to Macy with her mother
    and stepfather. At this, Stabler invited Athea to a family birth-
    day party at a local bar and offered to drive her back to Macy
    the next day “if u can handle this.” Athea testified that she
    understood “this” to refer to assaulting Jacinda. Athea agreed,
    and Stabler and Athea established general terms for payment—
    “Yeah give u sum cash r sun chit either way half an half we
    can talk about it”—which Athea explained meant she was to
    earn some combination of money and drugs. Unlike the earlier
    messages, these messages were not deleted and are part of
    the record.
    At the conclusion of the event at the community center,
    Athea met with Stabler and others at the home of Stabler’s
    sister to attend the birthday party. Athea testified that she
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    spoke alone with Stabler prior to leaving for the party and
    that Stabler indicated, in conformity with his and Athea’s elec-
    tronic messaging communications, that Athea was to assault
    Jacinda that night. According to Athea’s testimony, Stabler told
    Athea to “leave a scar on [Jacinda’s] face and to cut off her
    mane.” In return, Athea was to be paid $400 and 4 grams of
    methamphetamine.
    After attending the birthday party, Stabler and Athea dropped
    another partygoer off at the home of Stabler’s sister, then went
    to a different location to “get high.” During the car ride to the
    other location, Stabler gave Athea a knife.
    At some point, Stabler and Athea went to yet another home.
    Athea testified that the individuals who lived in that home
    drove her to Jacinda’s house and waited in the car while Athea
    was inside. Athea located Jacinda in the home, where she was
    sleeping in a bed with some of her children. That Jacinda was
    with her children gave Athea pause, and she testified that she
    decided only to threaten Jacinda. As such, she put the knife
    to Jacinda’s throat; this woke Jacinda, who began screaming.
    Athea grabbed Jacinda by her hair and began to hit her. Jacinda
    fought back and kicked at Athea, so Athea began stabbing
    Jacinda and tried to cut off her hair. Having stabbed Jacinda,
    though not cut her hair, Athea fled the house, dropping the
    knife on her way out.
    Over the next few months, Stabler and Athea continued
    to communicate via electronic messaging. As with the mes-
    sages sent on the day of the assault, these later messages are
    in the record. According to Stabler, the messages, reprinted in
    relevant part below, can be explained because Athea was seek-
    ing drugs. However, Athea testified that she initiated contact
    and attempted to meet with Stabler because she felt she was
    “gypped” by the compensation she received from Stabler for
    assaulting Jacinda. Athea further testified that she had received
    “some meth” and “just a hundred dollars,” when she was
    promised $400 and more methamphetamine than she ultimately
    received. Athea did not think she would be successful simply
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    telling that to Stabler, so she wanted to force a face-to-face
    meeting with him.
    During the course of these messages, Athea told Stabler that
    “iWent in With aKnife And Left WithOut It. My FingerPrints
    On That Shit. So Its Only aMatter Of Time.” She also mes-
    saged, “Ya Hear AnyThing About That Knife? That Shit Got
    Me Worried Like aMuhFcka. Ugh.” On another occasion,
    Stabler warned Athea, “Dude the cops . . . relax k” and “I got u
    . . . u have my word.” In response, Athea asked, “Any Updates
    With The Investigation?” Stabler informed Athea that “jacinda
    is pointing fingers at me . . . lol . . . I got this shit I tel u more
    in person u just relax as best u can.” Athea responded, “Im
    Tryin’ Unk. Juzt Impatient. Cuz if AnyThing Comes Bck On
    Me iAint Trynna Be Broke or Sober.” On yet another occasion,
    Athea asked for news updates. Stabler said that there were no
    updates, but that that was good news, and that the police were
    “Looking for a 6′ft tall 230lbs Mexican male,” to which Athea
    responded, “Ha! With Dark Curly Hair.” Stabler then replied,
    “Lol . . . shhh hit me up when ur in town.”
    Meanwhile, shortly after the assault, law enforcement
    received an anonymous tip that Athea had assaulted Jacinda.
    Athea was eventually questioned while being held on other
    charges. Athea admitted to assaulting Jacinda, but said that she
    would not have done so absent the arrangement with Stabler.
    Athea was convicted of second degree assault and sentenced to
    18 to 20 years’ imprisonment.
    Stabler was found guilty on both counts. He appeals.
    ASSIGNMENTS OF ERROR
    Stabler assigns as error that the district court erred by
    (1) failing to give a limiting instruction when requested in
    response to the State’s improper burden-shifting argument dur-
    ing rebuttal, (2) prohibiting Stabler from explaining that his
    prior convictions were for forgery, (3) failing to instruct the
    jury on the lesser-included offense of third degree assault, (4)
    finding that the evidence was sufficient to sustain Stabler’s
    convictions, and (5) imposing excessive sentences.
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    STANDARD OF REVIEW
    [1,2] Whether the jury instructions given by a trial court are
    correct is a question of law. 1 When reviewing questions of law,
    an appellate court resolves the questions independently of the
    conclusion reached by the lower court. 2
    [3] Regardless of whether the evidence is direct, circumstan-
    tial, 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 stan-
    dard is the same: In reviewing a criminal conviction, an appel-
    late court does not resolve conflicts in the evidence, pass on
    the credibility of witnesses, or reweigh the evidence; such mat-
    ters 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 favorably to the State, is suf-
    ficient to support the conviction. 3
    [4] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court. 4
    ANALYSIS
    Limiting Instruction.
    Stabler first assigns that statements made by the State in
    rebuttal closing arguments effectively shifted the burden of
    proof from the State to the defense and that the district court
    erred in not giving a limiting instruction to correct this burden
    shifting.
    [5] 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
    1
    State v. Rocha, 
    295 Neb. 716
    , 
    890 N.W.2d 178
    (2017).
    2
    Id. 3 State
    v. Case, 
    304 Neb. 829
    , 
    937 N.W.2d 216
    (2020).
    4
    State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
    (2020).
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    evidence, and (3) the appellant was prejudiced by the court’s
    refusal to give the tendered instruction. 5
    As relevant to this assignment of error, the record shows
    that during the State’s case in chief, it offered the testimony of
    one of the investigating officers. That officer testified that the
    police were able to locate just one of the two individuals who
    drove Athea to Jacinda’s home and that the individual refused
    to speak with them.
    During closing arguments, defense counsel noted that the
    State was not able to produce any witnesses to corroborate
    Athea’s testimony, including either of those two individuals.
    Defense counsel then noted that though the State claimed that
    neither individual would cooperate, it was “not an excuse” and
    did not change the State’s burden of proof.
    In response to this, the State commented in its rebuttal
    argument that it “[did not] deny [that] it’s [the State’s] bur-
    den to prove this case beyond a reasonable doubt, but parties
    have the power to subpoena, both parties have the power to
    compel witnesses,” apparently suggesting that Stabler, too,
    could have called these witnesses. Defense counsel objected
    at this point and requested the jury to be instructed that the
    burden never shifts to the defendant. The district court sus-
    tained the objection and noted, “The comments of the State
    are stricken from the record, and the jury is not to consider
    those comments.”
    On appeal, Stabler argues that the district court erred in not
    giving a limiting instruction regarding burden shifting. While
    the district court did not immediately give the specific limiting
    instruction Stabler requested, it struck the comments in ques-
    tion and specifically instructed the jury that it should disregard
    the comments. And only a short time later, just prior to submis-
    sion of the case, the trial court again so instructed the jury, both
    orally and in writing. The instructions informed the jury that it
    should not consider as evidence statements or arguments made
    by the attorneys, objections to questions, or testimony the jury
    5
    State v. Case, supra note 3.
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    had previously been told to disregard. In addition, the jury was
    instructed that the State had the burden to prove Stabler’s guilt.
    The jury was also informed about the State’s burden through-
    out the trial.
    We find no error in the district court’s handling of this mat-
    ter. And even if there was error, it was not prejudicial. Stabler’s
    first assignment of error is without merit.
    Admissibility of Stabler’s Testimony
    Regarding Nature of His Prior
    Felony Convictions.
    In his second assignment of error, Stabler assigns that the
    district court erred in finding that he could not testify on direct
    examination as to the basis of his prior felony convictions.
    During the course of trial, and just prior to Stabler’s taking
    the stand to testify in his own behalf, the State moved in limine
    to prohibit Stabler from testifying as to the nature of his two
    prior felony convictions. That motion was granted, and Stabler
    made an offer of proof that had he been permitted to testify,
    he would have stated his prior convictions were for crimes of
    dishonesty, specifically forgery.
    As relevant to this issue, Neb. Rev. Stat. § 27-609(1)
    (Reissue 2016) states:
    For the purposes of attacking the credibility of a witness,
    evidence that he has been convicted of a crime shall be
    admitted if elicited from him or established by public
    record during cross-examination, but only if the crime
    (a) was punishable by death or imprisonment in excess of
    one year under the law under which he was convicted or
    (b) involved dishonesty or false statement regardless of
    punishment.
    The issue presented in this case was addressed by the
    Nebraska Court of Appeals in State v. Howell. 6 The Court of
    Appeals examined this court’s case law regarding § 27-609,
    and it concluded:
    6
    State v. Howell, 
    26 Neb. Ct. App. 842
    , 
    924 N.W.2d 349
    (2019).
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    [W]e are constrained to find that the district court did not
    err in prohibiting [the defendant] from testifying as to
    the specifics of his prior felony conviction. Pursuant to
    [§ 27-609], [the defendant] was permitted to testify that
    he had previously been convicted of a felony or a crime
    involving dishonesty. He was not permitted to divulge the
    specifics of his prior conviction, as such information was
    not relevant to his credibility. 7
    Stabler argues in his brief that the district court erred,
    because without evidence on the nature of the felonies, “the
    jury was left to wonder about the nature of the prior felony
    convictions, in particular, left to wonder whether his felony
    convictions were for crimes of violence.” 8 Stabler asks this
    court to reverse the Court of Appeals’ decision in Howell.
    We need not decide whether Howell was wrongly decided,
    because in this case, the evidence Stabler wished to admit
    was presented to the jury. The record shows that Stabler was
    permitted to testify, without objection or cross-examination,
    that his felonies were for crimes of dishonesty; thus, the
    jury was informed that Stabler’s felonies were not for crimes
    of violence.
    We decline to address Stabler’s contention, made for the
    first time in oral arguments in this case, that there is a dis-
    tinction between forgery and other crimes of dishonesty. This
    contention was not raised below, nor was it assigned or argued
    in his brief.
    There is no merit to Stabler’s second assignment of error.
    Lesser-Included Instruction.
    Stabler also assigns that the district court erred in refus-
    ing to give his requested instruction for the lesser-included
    offense of third degree assault. He contends Athea testified that
    after she entered Jacinda’s home and found Jacinda sleeping
    with her children, she put the knife away and abandoned the
    7
    Id. at 869,
    924 N.W.2d at 371.
    8
    Brief for appellant at 37.
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    original plan. Stabler further notes that Athea attacked Jacinda
    only to keep her from screaming. Stabler argues that even
    then, Athea attacked at first only by punching Jacinda, and that
    Athea did not use the knife until Jacinda kicked her. Stabler
    argues that this created a causal break, that Athea’s actions
    using the knife after this point cannot be attributed to Stabler,
    and that there was a “rational basis” to support a third degree
    assault instruction. 9
    [6] A court must instruct on a lesser-included offense if
    (1) the elements of the lesser offense for which an instruc-
    tion is requested are such that one cannot commit the greater
    offense without simultaneously committing the lesser offense
    and (2) the evidence produces a rational basis for acquit-
    ting the defend­ant of the greater offense and convicting the
    defendant of the lesser offense. 10 The State does not dispute,
    and our case law supports, that third degree assault is a lesser-
    included offense of second degree assault. A person commits
    the offense of second degree assault by committing the offense
    of third degree assault of causing, intentionally, knowingly,
    or recklessly, bodily injury to another by the use of a danger-
    ous instrument.
    In State v. Al-Zubaidy, 11 the defendant was charged with sec-
    ond degree assault. An issue on appeal was whether a lesser-
    included instruction on the offense of third degree assault was
    warranted. We held such an instruction was not warranted,
    because the uncontroverted evidence established that a knife
    was used in perpetration of the assault. We noted:
    Where the prosecution has offered uncontroverted evi-
    dence on an element necessary for a conviction of the
    greater crime but not necessary for the lesser offense, a
    duty rests on the defendant to offer at least some evidence
    9
    Id. at 41.
    10
    State v. Oliveira-Coutinho, 
    304 Neb. 147
    , 
    933 N.W.2d 825
    (2019).
    11
    State v. Al-Zubaidy, 
    263 Neb. 595
    , 
    641 N.W.2d 362
    (2002).
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    to dispute this issue if he or she wishes to have the benefit
    of a lesser-offense instruction. 12
    Here, the evidence was uncontroverted that Athea entered
    Jacinda’s house with a knife that she intended to use, and in
    fact did use, to assault Jacinda. It was Stabler’s duty to raise
    at least some evidence to dispute this issue. Stabler argues that
    Athea’s decision not to assault Jacinda after seeing Jacinda
    with her children was a causal break that disputed the evidence
    of second degree assault and entitled him to an instruction for
    the lesser-included offense of third degree assault.
    But this was not a causal break. Any momentary hesita-
    tion on Athea’s part does not change the fact that Athea took
    a knife to Jacinda’s home and attacked Jacinda with the knife
    and that the jury found Stabler guilty of that crime under
    an aiding and abetting theory. Moreover, in finding Stabler
    guilty of both second degree assault and of use of a weapon to
    commit a felony, the jury agreed that there was a connection
    between Stabler’s arranging for the assault and Athea’s use of
    the weapon.
    There is no merit to Stabler’s third assignment of error.
    Sufficiency of Evidence.
    Stabler next assigns that the district court erred in find-
    ing there was sufficient evidence to support his convictions.
    He argues first that Athea was not credible and that no other
    evidence supported Stabler’s guilt. Stabler also argues that
    because Athea had second thoughts about using the knife to
    assault Jacinda when she saw the children in the room with
    Jacinda, such constituted an abandonment of the original plan
    and was a casual break in the chain of events. For that reason,
    the subsequent attack was attributed solely to Athea and there
    was no aiding and abetting liability on Stabler’s part.
    Stabler’s contention that Athea was not credible is not
    relevant to our determination of whether there was sufficient
    12
    Id. at 607,
    641 N.W.2d at 373-74.
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    e­ vidence to support the conviction. It is not the role of an
    appellate court to pass on the credibility of the witnesses, or
    otherwise resolve conflicts in or reweigh the evidence. 13 Rather,
    if in viewing the evidence in a light most favorable to the State
    there was any evidence to support Stabler’s guilt, such is suf-
    ficient to support the convictions. 14 In this case, Athea testified
    that she used a knife, given to her by Stabler, to stab Jacinda;
    that she did so at Stabler’s request; and that she was paid to do
    so. This is enough to support Stabler’s convictions.
    Stabler’s contention that there was insufficient evidence to
    support his convictions because Athea abandoned the original
    plan and thereafter was solely responsible for Jacinda’s assault
    is also without merit. As noted above, this was not a causal
    break relieving Stabler of responsibility under an aiding and
    abetting theory. This conclusion is reinforced, again as noted
    above, by the fact that the jury found Stabler guilty of second
    degree assault and use of a weapon to commit a felony.
    There is no merit to Stabler’s fourth assignment of error.
    Excessive Sentences.
    Finally, Stabler assigns that the sentences imposed by the
    district court were excessive. Stabler was convicted of sec-
    ond degree assault, a Class IIA felony, and sentenced to 10
    to 15 years’ imprisonment. He was also convicted of use of a
    weapon to commit a felony, a Class II felony, and sentenced to
    5 to 10 years’ imprisonment. The sentences were to be served
    consecutively.
    [7] Under Neb. Rev. Stat. § 28-105 (Reissue 2016), a Class
    IIA felony is punishable by a maximum of 20 years’ imprison-
    ment. There is no minimum. A Class II felony is punishable
    by a maximum of 50 years’ imprisonment and a minimum of
    1 year’s imprisonment. Where, as here, a sentence imposed
    within the statutory limits is alleged on appeal to be excessive,
    the appellate court must determine whether a sentencing court
    13
    See State v. Case, supra note 3.
    14
    See
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    abused its discretion in considering and applying the relevant
    factors as well as any applicable legal principles in determining
    the sentence to be imposed. 15
    [8,9] In determining a sentence to be imposed, relevant fac-
    tors customarily considered and applied are the defendant’s (1)
    age, (2) mentality, (3) education 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 commission of the crime. 16 The appropriateness
    of a sentence is necessarily a subjective judgment and includes
    the sentencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding
    the defendant’s life. 17
    A review of the record shows that not only were Stabler’s
    sentences within statutory limits, they were imposed based on
    Stabler’s plotting to have his wife, the mother of his children,
    assaulted. The sentences were not based on any inappropriate
    or irrelevant information. The district court did not abuse its
    discretion in sentencing Stabler, and there is no merit to his
    final assignment of error.
    CONCLUSION
    The convictions and sentences of the district court are
    affirmed.
    Affirmed.
    Freudenberg, J., not participating.
    15
    State v. Iddings, supra note 4.
    16
    Id. 17 Id.