State v. Grant ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. GRANT
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).
STATE OF NEBRASKA, APPELLEE,
V.
ROBERT W. GRANT, APPELLANT.
Filed June 14, 2016. No. A-15-828.
Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and John J. Jedlicka for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
Following a jury trial, Robert W. Grant was convicted of third degree assault on an officer,
a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-931 (Cum. Supp. 2014), and of terroristic
threats, a Class IV felony, pursuant to Neb. Rev. Stat. § 28-311.01 (Reissue 2008). The district
court for Douglas County sentenced him to 5 to 5 years’ imprisonment for third degree assault on
an officer and 20 months’ to 5 years’ imprisonment for terroristic threats. On appeal, Grant
challenges his convictions and sentences. For the following reasons, we affirm.
BACKGROUND
The events giving rise to the criminal charges in this case occurred while Grant was on trial
in the district court for Douglas County in a separate criminal case. On October 27, 2014, during
the sixth day of trial in that case, just after breaking for lunch and outside of the presence of the
jury, Grant hit one of the court deputies. See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
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Other deputies restrained Grant, and while being transported away, Grant said something to the
effect of, “I will punch all of you mother fuckers, I have people on the outside that will get you.”
As a result of those events, Grant was charged by information in the present case with third degree
assault on an officer (count I) and terroristic threats (count II).
After being so charged, Grant filed a motion to quash and a motion for a bill of particulars.
In the motion to quash, Grant asked that the information be quashed, because count II alleging
terroristic threats named “no victim or set of victims.” Rather, count II alleged only that “[o]n or
about October 27, 2014, [Grant] did then and there threaten to commit a crime of violence with
the intent to terrorize another or in reckless disregard of the risk of causing such terror.” Grant
argued that “the specific identity or identities [of the victim(s)] are crucial to the elements [of
terroristic threats] and ergo crucial for the defense attorneys to prepare adequately for trial.” In the
motion for a bill of particulars, Grant asked the State to provide a bill of particulars specifying the
victim or victims of count II.
At a hearing on Grant’s two motions, the State indicated it was willing to provide the names
of the deputies who were the alleged victims of the terroristic threats charge. Based on the State’s
willingness to provide the names, the court sustained Grant’s motion for a bill of particulars. The
court then asked Grant’s counsel, “And then that would handle your motion to quash . . . would
you agree?” Defense counsel responded affirmatively, and the court found that the motion to quash
was moot.
The State subsequently filed a bill of particulars indicating that the victims of count II
were “Sheriff’s Deputy J. Williamson,” “Sheriff’s Deputy R. Rogers,” “Sheriff’s Deputy F.
Christiansen,” and “Sheriff’s Sergeant K. Peterson.”
Grant also filed a pretrial motion in limine requesting that the court exclude any testimony
relating to statements he made threatening his attorneys or the public defenders. The record reflects
that during a conference in the trial judge’s chambers, the State consented to this request.
Accordingly, the court entered an order sustaining Grant’s motion in limine.
On June 15, 2015, the matter proceeded to trial. During jury selection, the State used
three of its peremptory challenges to strike jurors Nos. 16, 18, and 23, all of whom were
African-American, and one of its peremptory challenges to strike juror No. 19, who was of Middle
Eastern descent. Grant is African-American, and his counsel objected to the State’s peremptory
challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
During a side bar, counsel for both sides agreed that five members of the full 27-member jury
panel were African-American and one was of Middle Eastern descent. As a result of the State’s
peremptory challenges, only two African-American jurors were selected for the 13-member jury.
The State offered the following explanations of its use of peremptory challenges. It struck
juror No. 16 because he was single and worked at McDonald’s, which was “not a very significant
job,” and because he “seemed very disinterested in the process,” appearing to doze off at one point.
The State struck juror No. 18 because she was single and worked at “Victoria Secret in the
cosmetics department,” which was not “a very significant job,” and because she was “very short
and curt” in some of her responses. The State struck juror No. 19 because, although he understood
the questions posed to him, he was soft-spoken in his responses and seemed to have difficulty with
the English language, requiring the court reporter to clarify his responses. The State struck juror
No. 23 because “she sat with her arms crossed through the entire voir dire, and gave off indications
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that she was very disinterested in being here.” The State explained that it had used peremptory
challenges to strike non-minority jurors as well for having a “not significant” job or for appearing
disinterested.
After hearing the State’s explanations for its peremptory challenges, the court inquired as
to whether the jury would learn Grant’s race, given that Grant had declined to be present during
trial, and given that “we agreed that the photos [of Grant] are not going to be shown to the jury.”
(It is unclear to what agreement the court was referring.) Grant’s counsel agreed that it “could well
be” that the jury would not learn Grant’s race. The court then overruled Grant’s Batson challenge.
Following a lunch recess, the court addressed preliminary matters with counsel outside of
the jury’s presence. In particular, the court addressed the issue of whether a photo of Grant would
be published to the jury. Grant’s counsel indicated he was willing to stipulate that the State’s photo
of Grant was sufficient to establish his identity as the person “who was there on October 27, 2014.”
The State responded that “when we made the record on the Batson [challenge] . . . there was some
confusion as to whether or not there would actually be a physical photo offered of [Grant].” The
State argued that it was necessary to have one of its witnesses identify Grant as the individual who
committed the crimes charged in the information. The court ruled that the State could offer the
photograph through one of its witnesses and publish the photo to the jury. The court then explained
to Grant’s counsel:
As to your earlier Batson motion . . . I guess I would let you know that at the time I was
not thinking the photo was going to be seen by the jury, and now I know that it is. That
does not change my decision in any way. It wasn’t that significant of my decision -- part
of my decision. So I assure you that remains the same decision of the Court.
At trial, the State’s first witness was Douglas County Sheriff’s Deputy Adam Marcotte,
who testified that on October 27, 2014, he was on duty providing security at the Douglas County
courthouse. While clearing out the courtroom to which he was assigned, he observed that Grant
was not leaving as deputies had requested. Grant became very agitated and began “throwing his
arms up” and becoming “very verbal.” Deputies continued to try to negotiate with Grant without
success. Deputy Marcotte placed his right hand on Grant’s chest to try to make him sit in a chair.
Grant then struck Deputy Marcotte twice in the head with a closed fist. A struggle ensued, and
deputies restrained Grant.
The State’s next witness was Sergeant Kristopher Peterson of the Douglas County Sheriff’s
Office. He testified that while on duty on October 27, 2014, he received a distress call from a
courtroom deputy. He responded to the courtroom and observed several deputies trying to restrain
an individual later identified as Grant. After the deputies restrained Grant using handcuffs and leg
irons, the deputies began transporting Grant to the “holding tank” for processing, which required
using the courthouse’s prisoner elevator. While Sergeant Peterson was in the elevator with Grant,
Grant “made several statements to the effect of ‘I will punch all of you mother-fuckers. I have
people on the outside that will get you. I will punch my defense attorneys and stuff.’”
At this point, defense counsel objected and requested a side bar. During the side bar,
defense counsel moved for a mistrial based on the State’s violation of the court’s ruling on Grant’s
motion in limine. Defense counsel alternatively moved to strike the portion of the sergeant’s
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testimony addressing Grant’s threats to his attorneys. The court took the motions under advisement
and indicated counsel could address them again at the next recess.
Following the side bar, Sergeant Peterson testified that Grant said several times “I will
punch all of you mother-fuckers and I have people on the outside.” Grant’s demeanor when making
the threatening statements was “very upset, very angry” and “very violent.” On the elevator with
Grant and Sergeant Peterson was Deputy Manak and several other deputies, whose identities the
sergeant could not recall. On cross-examination, Sergeant Peterson agreed that Grant was fully
restrained and surrounded by deputies when he made the threatening statements on the elevator.
At the conclusion of Sergeant Peterson’s testimony, the court took a recess. During the
recess, outside of the jury’s presence, the court found that the sergeant’s testimony violated the
court’s ruling on Grant’s motion in limine. However, the court further found that the testimony
was “very minimal” and did not “in any way prejudice or cause enough harm to the defendant’s
right to a fair trial . . . to rise to the level of a mistrial.” The court denied the motion for mistrial,
but sustained the motion to strike. When the jury returned to the courtroom following the recess,
the court instructed it to “disregard the following statement that was made by deputy [sic] Peterson:
‘I will punch my defense attorneys and stuff,’ end of statement.”
The State’s final witness was Douglas County Sheriff’s Deputy Kevin Manak. Deputy
Manak’s testimony was consistent with the testimony of Deputy Marcotte and Sergeant Peterson.
Deputy Manak testified that Grant repeated “probably a dozen times” the statements that he would
“punch all you mother-fuckers” and that he had “people on the outside.”
After the State rested, defense counsel rested without presenting evidence. At a jury
instruction conference outside of the jury’s presence, defense counsel objected to the State’s jury
instruction No. 3 on the basis that it did not list the alleged victims of count II alleging terroristic
threats. The State responded that the instruction accurately stated what was alleged in the
information. The instruction stated, in pertinent part:
In Count 2 of the Information, Defendant is charged with Terroristic Threats. The
State alleges in substance that: On or about October 27, 2014, in Douglas County,
Nebraska, Robert W. Grant, did then and there threaten to commit a crime of violence with
the intent to terrorize another or in reckless disregard of the risk of causing such terror.
To these charges the Defendant has entered pleas of not guilty. The charges and the
Defendant’s pleas make up the issues which you will determine by your verdicts.
The court agreed with the State that the instruction reflected the language of count II and approved
the instruction. The court also approved jury instruction No. 9, which stated, in pertinent part:
Under Count 2 of the Information, depending on the evidence, you may return one
of several possible verdicts. You may find the Defendant: 1. Guilty of Terroristic Threats;
or 2. Not Guilty. . . .
The material elements which the State must prove, by evidence beyond a reasonable
doubt, in order to convict the Defendant of the crime of terroristic threats as charged in the
information, are: 1. That on or about October 27, 2014, in Douglas County, Nebraska, the
Defendant, Robert W. Grant, threatened to commit a crime of violence to Deputy
Kristopher Petersen [sic] and Deputy Kevin Manak; [and] 2. That the threat was made with
the intent to terrorize another or in reckless disregard of the risk of causing such terror.
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The State has the burden of proving beyond a reasonable doubt each and every one
of the foregoing material elements necessary for conviction.
After receiving its instructions and deliberating for approximately 1 hour, the jury returned
verdicts of guilty on counts I and II. On August 5, 2015, following a brief sentencing hearing at
which Grant chose not to appear, the court sentenced Grant to 5 to 5 years’ imprisonment for third
degree assault on an officer (count I) and 20 months’ to 5 years’ imprisonment for terroristic threats
(count II). The court did not request a presentence investigation prior to sentencing and made no
findings, other than referencing Grant’s “history and record.” The court ordered that the sentences
would be served concurrently to each other but consecutive to the sentences in case No.
CR13-2995, in which Grant was convicted of first-degree murder and use of a deadly weapon to
commit a felony and sentenced to consecutive terms of life imprisonment and 50 to 50 years’
imprisonment. See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016) (affirming Grant’s
convictions and sentences in that case).
Grant timely appealed to this court.
ASSIGNMENTS OF ERROR
Grant assigns that the district court erred in (1) overruling his objection pursuant to Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the State’s use of peremptory
challenges; (2) denying his motion to quash, “which ultimately led to [Grant] being denied due
process to a [sic] proper defense, given the confusion that resulted from the Jury Instructions
regarding the identity of the victims”; (3) overruling his motion for mistrial when, in violation of
the ruling on his motion in limine, the State questioned its witness regarding a statement Grant
made threatening his defense attorneys; (4) giving contrary jury instructions regarding the
elements of terroristic threats; and (5) imposing excessive sentences.
STANDARD OF REVIEW
An appellate court reviews de novo the facial validity of an attorney’s race-neutral
explanation for using a peremptory challenge as a question of law. An appellate court reviews for
clear error a trial court’s factual determination regarding whether a prosecutor’s race-neutral
explanation is persuasive and whether the prosecutor’s use of a peremptory challenge was
purposefully discriminatory. State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
Whether to grant a motion for mistrial is within the trial court’s discretion, and an appellate
court will not disturb its ruling unless the trial court abused its discretion. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and evidence. State v. Cullen, 292 Neb.
30, 870 N.W.2d 784 (2015).
Whether a court’s jury instructions were correct is a question of law. On a question of law,
an appellate court is obligated to reach a conclusion independent of the determination of the court
below. State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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ANALYSIS
Batson Challenge.
Grant’s first assignment of error is that the district court erred in overruling his objection
pursuant to Batson v. Kentucky, supra, to the State’s use of peremptory challenges. He contends
that “the State’s explanations do not rise to the level to justify using four of six strikes on minority
members of the panel.” Brief for appellant at 13. Grant further notes that the district court overruled
his Batson challenge immediately after inquiring into whether the jury would see his photo;
however, after the court determined that Grant’s photo would be published to the jury, it indicated
that the photo was not a significant factor in its decision to overrule the Batson challenge.
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the
U.S. Supreme Court held that a prosecutor’s privilege to strike individual jurors through
peremptory challenges was subject to the commands of the Equal Protection Clause. State v.
Oliveira-Coutinho, supra. A prosecutor is ordinarily entitled to exercise permitted peremptory
challenges for any reason at all, if that reason is related to his view concerning the outcome of the
case. Id. But the Equal Protection Clause forbids the prosecutor from challenging potential jurors
solely because of their race. Id.
Courts use a three-step process to determine whether the State impermissibly struck a
prospective juror based on race:
First, a defendant must make a prima facie showing that the prosecutor exercised a
peremptory challenge because of race. Second, assuming the defendant made such a
showing, the prosecutor must offer a race-neutral basis for striking the juror. And third, the
trial court must then determine whether the defendant has carried his or her burden of
proving purposeful discrimination. The third step requires the trial court to evaluate the
persuasiveness of the justification proffered by the prosecutor. But the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the opponent of
the strike.
State v. Oliveira-Coutinho, 291 Neb. 294, 320-21, 865 N.W.2d 740, 763 (2015). Where the State
has offered race-neutral explanations for its use of peremptory challenges and the trial court has
decided the ultimate question of intentional discrimination, the preliminary issue of whether the
defendant made a prima facie showing is moot. Id. In such a situation, the only questions for the
appellate court are whether the State’s explanations were race neutral and whether the trial court’s
final determination regarding purposeful discrimination was clearly erroneous. Id.
At this point, we acknowledge Grant’s observation that the district court overruled his
Batson challenge immediately after inquiring into whether the jury would see Grant’s photo, but
later indicated that the photo was not a significant factor in its decision to overrule the Batson
challenge. Although the court’s inquiry into the use of Grant’s photo raises some question about
its reasons for overruling the Batson challenge, the court gave no explanation on the record for its
decision. Therefore, we have no reason to doubt the court’s subsequent statement that the photo
was not a significant factor in its decision.
Notably, the court required the State to provide explanations for its use of peremptory
challenges against these four jurors. Only after hearing the State’s explanations did the court
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overrule Grant’s Batson challenge. Therefore, we conclude the court decided the ultimate question
of intentional discrimination in the State’s favor, and the only questions for us to decide are
whether the State’s explanations were race neutral and whether the trial court’s final determination
regarding purposeful discrimination was clearly erroneous. See State v. Oliveira-Coutinho, supra.
We begin by determining whether the State’s explanations were race neutral, which is the
second step of an analysis under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986). Although the prosecutor must present a comprehensible reason for a peremptory
challenge, the second step of the analysis does not demand an explanation that is persuasive, or
even plausible; so long as the reason is not inherently discriminatory, it suffices. State v. Thorpe,
280 Neb. 11, 783 N.W.2d 749 (2010). The Nebraska Supreme Court has deemed explanations for
peremptory challenges to be race neutral: (1) when a prospective juror’s residence was close to the
crime scene, (2) when a prospective juror had a close family member who was a convicted felon,
(3) when a prospective juror was employed at a church, and (4) when a prospective juror was
young and single and might be attracted to the defendant. Id. These examples “illustrate that only
inherently discriminatory explanations are facially invalid.” Id. at 18, 783 N.W.2d at 757.
We conclude that the State’s explanations for its peremptory challenges were facially race
neutral. The State’s proffered reasons were similar to those that the Nebraska Supreme Court has
deemed to be race neutral and not inherently discriminatory. For example, in State v. Myers, 258
Neb. 300, 603 N.W.2d 378 (1999), the court held it was proper to deny a Batson challenge where
the State struck a prospective juror who was unemployed and seemed to have a disagreeable
attitude, as well as a prospective juror who was elderly and had difficulty paying attention.
Similarly, in State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006), the court upheld the striking
of a prospective juror for the reason that she was employed at a church, even though it was unclear
why the juror’s employment concerned the State; it was sufficient that the explanation was not
racially motivated. Likewise, here, there was nothing about the State’s explanations that suggested
the peremptory challenges were motivated by race.
The next question is whether the court committed clear error in evaluating the
persuasiveness of the State’s explanations for its strikes, which concerns the third step of a Batson
v. Kentucky, supra, inquiry. See State v. Thorpe, supra. The U.S. Supreme Court has explained
that the third step of the inquiry involves evaluating the prosecutor’s credibility; such credibility
determinations lie within the peculiar province of the trial judge and require deference to the trial
court. State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
After reviewing the record and taking into consideration that the district court was in the
best position to evaluate the prosecutor’s credibility, we conclude that the court did not commit
clear error in evaluating the persuasiveness of the State’s explanations. Although the State did not
explain what it meant when it said jurors Nos. 16 and 18 had jobs that were not “very significant,”
the State further explained that it struck at least one non-minority juror for the same reason. Also,
the State explained that jurors Nos. 16 and 23 appeared disinterested, and that it struck at least one
non-minority juror for this reason as well. The State struck juror No. 19 for the practical reason
that he seemed to have difficulty communicating in the English language, requiring the court
reporter to clarify his responses. Again, these explanations are similar to those the Nebraska
Supreme Court has found to be sufficient for purposes of overruling a Batson challenge. The
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district court did not commit clear error in accepting the explanations and overruling the Batson
challenge.
Motion to Quash.
Grant’s second assignment of error is that the district court erred in denying his motion to
quash, “which ultimately led to [Grant] being denied due process to a [sic] proper defense, given
the confusion that resulted from the Jury Instructions regarding the identity of the victims.” Brief
for appellant at 2.
We briefly summarize the pertinent background again for context. Prior to trial, Grant filed
a motion to quash the information on the basis that count II named “no victim or set of victims.”
At the same time, he filed a motion for a bill of particulars asking for the names of the victims of
count II. The court sustained the motion for a bill of particulars, then asked defense counsel, “And
then that would handle your motion to quash . . . would you agree?” Counsel responded
affirmatively, and the court found that the motion to quash was moot.
On appeal, in support of his second assignment of error, Grant argues that the motion to
quash “was not moot.” Brief for appellant at 15. Although his argument is somewhat difficult to
follow, he seems to argue that the motion to quash was not moot because at the hearing on the
motion to quash, defense counsel had “no expectation” that the court would later approve jury
instruction No. 3 without including the names of the alleged victims. Id.
It is well-established that a party cannot complain of error which he or she has invited the
court to commit. State v. Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013). Here, defense counsel
agreed with the district court that its decision to sustain the motion for a bill of particulars resolved
the pending motion to quash. Grant cannot now present a contrary argument on appeal. Regardless,
Grant’s arguments pertaining to the supposed confusion resulting from the jury instructions are
better addressed in the context of his fourth assignment of error, which we address below.
Motion for Mistrial.
Grant’s third assignment of error is that the district court erred in overruling his motion for
mistrial after the State violated the court’s ruling on his motion in limine. In support of this
assignment of error, Grant argues that Sergeant Peterson’s testimony that Grant said “‘I will punch
my defense attorneys and stuff’” was prejudicial, because the victims of count II alleging terroristic
threats were the deputies, not Grant’s attorneys. Grant asserts that “[t]he prejudice is even more
pronounced when coupled with the Court leaving out the victims’ names” in jury instruction No. 3.
Brief for appellant at 18.
Again, we briefly summarize the pertinent background. After Sergeant Peterson testified
that Grant said “‘I will punch my defense attorneys and stuff,’” defense counsel asked for a side
bar, at which he moved for a mistrial or, alternatively, to strike the offending portion of the
sergeant’s testimony. The court addressed the motions during a recess at the conclusion of Sergeant
Peterson’s testimony. The court overruled the motion for a mistrial, reasoning that the testimony
was “very minimal” and did not “in any way prejudice or cause enough harm to the defendant’s
right to a fair trial . . . to rise to the level of a mistrial.” The court then sustained the motion to
strike the testimony. Following the recess, the court instructed the jury to “disregard the following
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statement that was made by deputy [sic] Peterson: ‘I will punch my defense attorneys and stuff,’
end of statement.”
Ordinarily, when an objection to or motion to strike improper evidence is sustained and the
jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice. State
v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). A mistrial is properly granted in a criminal case
only where an event occurs during the course of a trial which is of such a nature that its damaging
effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair
trial. State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
We agree with the district court that the sergeant’s single reference to Grant’s statement
threatening his attorney was not so prejudicial as to warrant a mistrial. Rather, the testimony was
minimal, and the court’ admonition to the jury to disregard the statement was sufficient to prevent
prejudice. We are not persuaded by Grant’s argument that the testimony was prejudicial because
jury instruction No. 3 did not include the victims’ names, resulting in possible confusion as to
whether the deputies or Grant’s attorneys were the victims of the terroristic threats charge. As we
explain below when addressing Grant’s fourth assignment of error, the jury instructions were not
misleading. In sum, we conclude that the court did not abuse its discretion in overruling Grant’s
motion for a mistrial.
Jury Instructions.
Grant’s fourth assignment of error is that the district court erred in giving contrary jury
instructions regarding the elements of terroristic threats. Specifically, Grant argues that jury
instruction No. 3, which did not name the alleged victims of the terroristic threats charge,
conflicted with jury instruction No. 9, which named the victims. Grant contends that jury
instruction No. 3 “omitted a material element of that charge” and that the jury could have believed
“that the victim(s) could be someone or anyone.” Brief for appellant at 19-20.
When reviewing a challenge to jury instructions, a court must read all the instructions
together, and if taken as a whole they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence, there is no prejudicial error
necessitating reversal. State v. Merchant, 288 Neb. 439, 848 N.W.2d 630 (2014). In an appeal
based on a claim of an erroneous jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely affected a substantial right of the
appellant. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
Section 28-311.01 defines the crime of terroristic threats. As pertinent to the charge in
count II of the information, the statute provides that “[a] person commits terroristic threats if he or
she threatens to commit any crime of violence” either “[w]ith the intent to terrorize another” or
“[i]n reckless disregard of the risk of causing such terror.” § 28-311.01(1)(a), (c).
As set forth above, jury instruction No. 3 stated, in pertinent part, that count II of the
information charged Grant with terroristic threats. The instruction then indicated that the State
alleged “in substance” that “[o]n or about October 27, 2014, in Douglas County, Nebraska, Robert
W. Grant, did then and there threaten to commit a crime of violence with the intent to terrorize
another or in reckless disregard of the risk of causing such terror.” The instruction provided that
Grant had pleaded not guilty, and that the charges and Grant’s pleas “make up the issues which
you will determine by your verdicts.”
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Jury instruction No. 9 was much more detailed and specifically instructed the jury that
under count II of the information, the jury could return one of two possible verdicts, either (1)
guilty of terroristic threats, or (2) not guilty. The instruction went on to provide:
The material elements which the State must prove, by evidence beyond a reasonable
doubt, in order to convict the Defendant of the crime of terroristic threats as charged in the
information, are: 1. That on or about October 27, 2014, in Douglas County, Nebraska, the
Defendant, Robert W. Grant, threatened to commit a crime of violence to Deputy
Kristopher Petersen [sic] and Deputy Kevin Manak; [and] 2. That the threat was made with
the intent to terrorize another or in reckless disregard of the risk of causing such terror.
The instruction then indicated that “[t]he State has the burden of proving beyond a reasonable
doubt each and every one of the foregoing material elements necessary for conviction.”
Reading these jury instructions together, we are not persuaded by Grant’s contention that
he was prejudiced by the omission of the victim’s names from jury instruction No. 3. That
instruction merely set forth “in substance” the State’s allegations contained in the information. It
did not specifically address the elements of the offense, the applicable burdens of proof, or the
possible verdicts. Even if the instruction would have been more accurate if it had named the alleged
victims of the terroristic threats charge, the omission could not have prejudiced Grant given the
detailed instructions contained in jury instruction No. 9. Specifically, jury instruction No. 9
informed the jury that the State had the burden of proving beyond a reasonable doubt “each and
every one of the foregoing material elements,” including that Grant “threatened to commit a crime
of violence to Deputy Kristopher Petersen [sic] and Deputy Kevin Manak.” Taken as a whole, the
instructions were clear and straightforward and did not present a risk of confusion.
Before leaving the issue of the jury instructions, however, we note that in the bill of
particulars, the State identified the victims of count II as “Sheriff’s Deputy J. Williamson,”
“Sheriff’s Deputy R. Rogers,” “Sheriff’s Deputy F. Christiansen,” and “Sheriff’s Sergeant K.
Peterson.” However, in jury instruction No. 9, the State identified the victims as “Deputy
Kristopher Petersen [sic] and Deputy Kevin Manak.” Deputy Manak was not identified as a victim
in the bill of particulars.
Grant did not raise the discrepancy between the bill of particulars and jury instruction No.
9 either before the district court or on appeal. Absent plain error, an issue not raised to the district
court will not be considered by an appellate court on appeal. State v. Kays, 289 Neb. 260, 854
N.W.2d 783 (2014). Plain error exists where there is error, plainly evident from the record but not
complained of at trial, that prejudicially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process. Id. Because only one victim was
necessary to support the conviction of terroristic threats, and because Sergeant Peterson was named
as a victim in the bill of particulars and in jury instruction No. 9, we find no plain error.
Excessive Sentence.
Grant’s fifth and final assignment of error is that his sentences were excessive. His sole
argument is that the sentences were excessive “[g]iven the nature of the Deputy’s injuries” and the
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fact that his “hands were cuffed and shackled when the threats were made.” Brief for appellant
at 22.
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013). Factors
a judge should consider in imposing a sentence include the defendant’s age, mentality, education,
experience, and social and cultural background, as well as his or her past criminal record or
law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence
involved in the commission of the crime. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
At the time of sentencing, the sentencing range for third degree assault on an officer, a
Class IIIA felony, was 0 to 5 years’ imprisonment or a $10,000 fine or both. Neb. Rev. Stat.
§ 28-105(1) (Cum. Supp. 2014). The sentencing range for terroristic threats, a Class IV felony,
was also 0 to 5 years’ imprisonment or a $10,000 fine or both. § 28-105(1). Grant’s sentences of
5 to 5 years’ imprisonment for third degree assault on an officer and 20 months’ to 5 years’
imprisonment for terroristic threats were within statutory limits.
As noted above, in sentencing Grant, the district court made no findings, other than
referencing Grant’s “history and record.” This may have been a reference to Grant’s recent
convictions of first-degree murder and use of a deadly weapon to commit a felony, for which Grant
was sentenced to consecutive terms of life imprisonment and 50 to 50 years’ imprisonment. See
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016) (affirming Grant’s convictions and sentences
in that case). Again, Grant was on trial for those offenses when he committed the acts that resulted
in the charges in the present case. Considering Grant’s history and the circumstances of the present
crime, we cannot say the court abused its discretion in sentencing Grant as it did.
We reject Grant’s efforts to minimize his crimes based on “the nature of the Deputy’s
injuries” and the fact that his “hands were cuffed and shackled when the threats were made.” Brief
for appellant at 22. By all accounts, several deputies were required to restrain Grant in the
courtroom, and he was “very violent,” “very upset,” and “very angry” during the altercation.
Although Grant was in handcuffs and leg irons when he repeatedly threatened to “punch all of you
mother-fuckers,” his additional statements that he had “people on the outside” clearly were
intended to indicate that he had the ability to cause the deputies to be harmed even while he was
in custody.
Also with respect to sentencing, we note that the court did not request a presentence
investigation prior to sentencing. Grant did not raise this issue in the district court or on appeal.
Again, absent plain error, an issue not raised to the district court will not be considered by an
appellate court on appeal. State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014).
Neb. Rev. Stat. § 28-2261(1) (Cum. Supp. 2014) provides that “[u]nless it is impractical to
do so, when an offender has been convicted of a felony, the court shall not impose sentence without
first ordering a presentence investigation of the offender and according due consideration to a
written report of such investigation.” However, the Nebraska Supreme Court has held that one
instance in which it may be impractical to request a presentence investigation is where another
investigation has just been completed. See State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012),
citing State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). Here, given that Grant was recently
sentenced in the district court for Douglas County for first-degree murder and use of a deadly
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weapon to commit a felony, we find no plain error in the district court’s decision in the present
case to not request a presentence investigation.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court for Douglas County.
AFFIRMED.
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