State v. Coleman ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. COLEMAN
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.
MICHAEL COLEMAN, APPELLANT.
Filed August 11, 2020. No. A-19-890.
Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Affirmed.
W. Randall Paragas, of Paragas Law Offices, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
MOORE, Chief Judge, and BISHOP and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Following a jury trial, Michael Coleman was convicted of second degree assault, use of a
deadly weapon to commit a felony, and possession of a firearm by a prohibited person. He was
subsequently sentenced to a term of imprisonment which included a habitual criminal
enhancement. Coleman appeals, contending that there was insufficient evidence to support his
convictions and that he received ineffective assistance of trial counsel. For the reasons set forth
herein, we affirm.
II. STATEMENT OF FACTS
1. BACKGROUND
In May 2018, Randy Stella, Jason Cribbs, Melvin McPhaul, and Andrew Ray gathered at
a bar in Omaha, Nebraska, to watch the NBA playoffs. Upon arriving at the bar, Stella parked his
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car directly in front of the bar’s main entrance and went inside to join his friends. A few hours
later, upon exiting the bar and getting into his car to leave, Stella heard a very loud bang, lost his
vision, his ears began ringing, and he felt blood running down his neck and chest. As his vision
returned, he looked around and noticed a dark figure with long hair standing outside his car. The
man shot Stella. Stella’s injuries consisted of a bullet entrance wound below his right ear and a
bullet exit hole in his jaw. A short time later, an ambulance arrived and took Stella to a hospital
for treatment. At the emergency room, Stella told law enforcement that the shooter was a black
male with dreadlocks and a red shirt.
As a result of these events, and following an investigation, Coleman was charged with first
degree assault, a Class II felony; use of a firearm to commit a felony, a Class IC felony; and
possession of a deadly weapon by a prohibited person, a Class ID felony. Thereafter, the
information was amended to reduce the first degree assault charge to second degree assault, a
Class IIA felony, and to add a charge that Coleman was a habitual criminal, with the other charges
remaining the same.
2. TRIAL
The jury trial was held in May 2019 during which the aforementioned facts were admitted
into evidence. The parties stipulated that Coleman had previously been convicted of a felony “prior
to May 16, of 2018.” Additional testimony was adduced from, among others, Cribbs, McPhaul,
Ray, and Rony Lozada.
(a) Jason Cribbs
Stella left the bar, and 1 to 2 minutes after that McPhaul and Cribbs were also leaving.
Cribbs heard a shot and “heard [a] gun drop,” then saw a man with long dreadlocks in a dark red
or black shirt a few feet away from Stella’s car reach down to pick up the gun and then run to a
silver truck, which drove off. On cross-examination, Cribbs testified he did not see a gun, but,
rather, heard the shot and then “heard the gun drop.” Cribbs acknowledged that part of the parking
lot was a little dark.
(b) Melvin McPhaul
McPhaul testified that Stella left the bar, and a few minutes later McPhaul and Cribbs left
as well. McPhaul was in the bar’s entryway when he heard a gunshot and saw a man with
dreadlocks wearing a red shirt and shorts moving toward the car that was straight ahead to the left.
McPhaul opined the man looked like he was picking up something as he was moving to McPhaul’s
left and entered a silver truck, which then left the parking lot. McPhaul noted that man was the
only person he saw in the area after hearing the gunshot.
On cross-examination, McPhaul was asked about his deposition testimony in which he
stated he saw the suspect wearing a red T-shirt and a blue hat, and McPhaul testified that he recalled
saying that during his deposition. On redirect, McPhaul clarified that he saw the suspect wearing
a hat when he entered the bar but was not sure if he was wearing the hat outside by the truck.
(c) Andrew Ray
Ray testified that when he initially entered the bar, a man with dreadlocks and wearing a
red T-shirt walked toward him, but Ray did not think anything of it at the time other than just
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making a “mental note” that someone was walking towards him. The next time Ray recalled seeing
the aforementioned man that night was in the bar’s parking lot. Ray explained that he had left the
bar approximately 5 to 7 minutes after Stella left and that as Ray was retrieving an item from his
trunk, he heard a popping sound and saw a white sedan roll back a little bit. Next, Ray saw the
man hunched over, running from the sedan as if “he was trying to conceal something in his
waistband” and then enter a silver truck that sped off. Ray testified that after hearing the shot,
nothing obstructed Ray’s viewpoint between himself and the man, and that the parking lot was lit.
As the truck sped off, Ray memorized the truck’s license plate number.
Ray testified that the man he described was Coleman and made an in-court identification
of Coleman. Additionally, Ray testified no other individuals with dreadlocks were in the bar that
evening, and he estimated that approximately 10 minutes elapsed from the time Stella left the bar
to the time Ray heard the popping sound.
(d) Law Enforcement Testimony
Law enforcement determined that the license plate number of the silver truck was
registered to Veronica Busch, who informed law enforcement that Coleman was her “on-again,
off-again boyfriend” who drove the truck, and that in April 2018, Coleman had been stopped for
speeding while driving the truck.
(e) Rony Lozada
Lozada testified that he was seated in the patio area of the bar when he observed a dark
gray truck in the parking lot. Lozada explained that at one point he saw a person exit the bar and
walk to a car. At the same time, he also saw a black man with shoulder-length dreadlocks, a red
shirt, and dark shorts, possibly gray or black, crouching while approaching the car. Lozada thought
the man with dreadlocks was approximately 5ʹ8ʺ or 5ʹ9ʺ tall and weighed about 170 or 180 pounds.
Then Lozada heard a loud noise and saw the man with dreadlocks running to the gray truck, which
quickly sped off. Lozada estimated that less than a minute elapsed from the time he heard the loud
noise to the time the truck sped out of the parking lot.
3. VERDICT, ENHANCEMENT, AND SENTENCING
The jury found Coleman guilty of all three of the charged offenses. The district court held
the enhancement hearing at which the court received certified copies of Coleman’s two prior felony
convictions in Nebraska, which consisted of possession of a stolen firearm and accessory to a
felony, for which Coleman was previously sentenced to prison terms of 1 to 2 years’ imprisonment
and not less than nor more than 18 years’ imprisonment respectively. The district court found that
Coleman was a habitual criminal. Thereafter, the court sentenced Coleman to 35 to 40 years’
imprisonment for each offense, with each sentence ordered to run consecutively.
III. ASSIGNMENTS OF ERROR
On appeal, Coleman contends that there was insufficient evidence to support his
convictions.
He also assigns as error that his “trial counsel provided assistance of counsel so deficient
that, but for counsel’s deficient performance, the result of the proceeding below would have been
different.” Brief for appellant at 3. Assignments of error on direct appeal regarding ineffective
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assistance of trial counsel must specifically allege deficient performance, and an appellate court
will not scour the remainder of the brief in search of such specificity. State v. Mrza, 302 Neb. 931,
926 N.W.2d 79 (2019). This assigned error is a general allegation and clearly lacks the specificity
required by Mrza. Accordingly, Coleman has failed to raise an ineffective assistance claim on
direct appeal.
IV. STANDARD OF REVIEW
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. State v. Smith, 302 Neb. 154, 922 N.W.2d 444(2019). 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. Id.V. ANALYSIS
Coleman first contends the evidence adduced by the State was insufficient to support his
convictions of second degree assault, use of a firearm to commit a felony, and possession of a
deadly weapon by a prohibited person. In support of this assignment, Coleman argues that although
the State attempted to establish that he was the shooter through the eyewitness testimonies of Ray,
Stella, Cribbs, McPhaul, and Lozada, there were inconsistencies, or lack of clarity in their versions
of events which casted doubt on the veracity or credibility of their testimony.
In order to prove Coleman guilty of second degree assault as charged, the State was
required to prove that Coleman had intentionally or knowingly caused bodily injury to another
person, i.e. Stella, with a dangerous instrument. See Neb. Rev. Stat. § 28-309(1)(a) (Reissue 2016).
In order to prove Coleman guilty of use of a deadly weapon to commit a felony, the State
was required to prove Coleman used a firearm, to commit any felony which may be prosecuted in
a court of this state. See Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).
In order to prove Coleman guilty of possession of a deadly weapon by a prohibited person,
the State was required to prove Coleman possessed a firearm and had previously been convicted
of a felony. See Neb. Rev. Stat. § 28-1206(1)(a) (Reissue 2016).
The evidence established that Stella was in his car when a gunshot was heard by numerous
witnesses who then identified a man fitting Coleman’s description standing next to Stella’s car.
That man then appeared to reach down and grab something, which Cribbs testified he believed to
be a gun which he heard strike the ground, followed by the man hurriedly entering a silver truck
that quickly sped off. Ray testified that he memorized the license plate number of the silver truck,
and when investigated, law enforcement learned Coleman was stopped for speeding in that same
truck the month prior to the shooting. Furthermore, Ray provided an in-court identification that
Coleman was the man he saw move from Stella’s car and enter the silver truck. Although the
witnesses ascribed different time periods that passed between Stella leaving the group and the
shooting, each of the witnesses’ testimonies, except for Stella, were consistent in that they heard a
gunshot or a loud noise that caught their attention and saw a man fitting Coleman’s description
moving away from Stella’s car and quickly leaving the area in a truck. While Stella indicated that
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after he heard a loud noise he saw a dark figure with long hair outside his car, this description does
not contradict the other witnesses’ testimonies. Ultimately, Coleman asks this court to pass on the
credibility of witnesses and to reweigh the evidence, which is a matter for the finder of fact and
not an appellate court. See State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
After reviewing the record, this evidence is sufficient to support the conclusions that (1)
Coleman intentionally or knowingly caused bodily injury to Stella with a dangerous instrument,
(2) Coleman used a firearm to commit a felony, and (3) Coleman possessed a firearm while
shooting Stella and Coleman was previously convicted of a felony “prior to May 16, of 2018.”
Viewing the evidence in the light most favorable to the State, we conclude a rational trier
of fact could have found the essential elements of second degree assault, use of a firearm to commit
a felony, and possession of a deadly weapon by a prohibited person beyond a reasonable doubt.
Thus, this assignment of error fails.
VI. CONCLUSION
In sum, we find that Coleman failed to preserve his argument regarding ineffective
assistance of trial counsel and that his argument the evidence was insufficient to support his
convictions fails.
AFFIRMED.
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