State v. Wofford , 298 Neb. 412 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. WOFFORD
Cite as 298 Neb. 412
State of Nebraska, appellee, v.
Nico M. Wofford, appellant.
___ N.W.2d ___
Filed December 15, 2017. No. S-16-1004.
1. Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for
consolidation of prosecutions properly joinable will not be disturbed on
appeal absent an abuse of discretion.
2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
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. It 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 pur-
posefully discriminatory.
3. Trial: Juries: Evidence: Appeal and Error. A trial court’s decision
to allow a jury during deliberations to rehear or review nontestimonial
evidence is reviewed by an appellate court for an abuse of discretion.
4. Convictions: Evidence: Appeal and Error. 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. 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 ele-
ments of the crime beyond a reasonable doubt.
5. 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.
6. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
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depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
7. Trial: Joinder: Indictments and Informations. The propriety of a
joint trial involves two questions: whether the consolidation is proper
because the defendants could have been joined in the same indictment
or information, and whether there was a right to severance because the
defendants or the State would be prejudiced by an otherwise proper con-
solidation of the prosecutions for trial.
8. Trial: Joinder: Proof: Appeal and Error. The burden is on the party
challenging a joint trial to demonstrate how and in what manner he or
she was prejudiced.
9. Trial: Joinder. Consolidation is proper if the offenses are part of a
factually related transaction or series of events in which both of the
defendants participated.
10. Trial: Joinder: Evidence. A defendant is not considered prejudiced
by a joinder where the evidence relating to both defendants would be
admissible in a trial of either defendant separately.
11. Juries: Prosecuting Attorneys: Equal Protection. A prosecutor is
ordinarily entitled to exercise permitted peremptory challenges for any
reason at all, if that reason is related to his or her view concerning the
outcome of the case. However, the U.S. Supreme Court in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), held
that the Equal Protection Clause forbids the prosecutor to challenge
jurors solely because of their race.
12. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining
whether a prosecutor impermissibly struck a prospective juror based on
race is a three-step process. In this three-step process, the ultimate bur-
den of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. 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 determine whether the defendant has carried
his or her burden of proving purposeful discrimination.
13. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecu-
tor’s reasons for using a peremptory challenge are race neutral is a ques-
tion of law.
14. ____: ____: ____. In determining whether a prosecutor’s explanation for
using a peremptory challenge is race neutral, a court is not required to
reject the explanation because it is not persuasive, or even plausible; it is
sufficient if the reason is not inherently discriminatory. Only inherently
discriminatory explanations are facially invalid.
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STATE v. WOFFORD
Cite as 298 Neb. 412
15. Appeal and Error. An appellate court does not consider errors which
are argued but not assigned.
16. Trial: Juries: Evidence. A trial court does not have discretion to submit
testimonial materials to the jury for unsupervised review, but the trial
court has broad discretion to submit to the jury nontestimonial exhibits,
in particular, those constituting substantive evidence of the defend­
ant’s guilt.
17. 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 the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
18. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
19. Sentences: Judgments. The appropriateness of a sentence is necessar-
ily a subjective judgment and includes the sentencing judge’s observa-
tions of the defendant’s demeanor and attitude and all of the facts and
circumstances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Ernest H. Addison, Jr., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Nico M. Wofford appeals his convictions and sentences in
the district court for Douglas County for unlawful discharge
of a firearm and use of a weapon to commit a felony. Wofford
assigns error to certain rulings and actions of the trial court,
and he claims that there was insufficient evidence for his
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STATE v. WOFFORD
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convictions and that the court imposed excessive sentences.
We affirm Wofford’s convictions and sentences.
STATEMENT OF FACTS
On July 30, 2015, police officers responded to reports of
a shooting in the area of South 33d and Q Streets in Omaha,
Nebraska. Police found a dark blue Oldsmobile parked near
a convenience store on Q Street. Shots had been fired into
the Oldsmobile from another vehicle that was passing it in an
adjacent lane. Four adults and two children had been inside the
Oldsmobile at the time, and one of the adult occupants was
injured by a gunshot to the neck. Police found another vehicle,
a silver Saturn, stopped a short distance away on South 33d
Avenue; it appeared that the Saturn had been disabled after it
struck the curb of a storm drain after turning onto South 33d
Avenue from Q Street. Witnesses stated that three men had run
from the Saturn after it stopped.
The registered owner of the Saturn was Lafferrell Matthews.
Officers investigating the shooting found Matthews in the area
near South 33d and S Streets. When the officers approached
Matthews, he told them he had been looking for police in order
to report that his car had been stolen. In later questioning by
police, Matthews initially repeated that his car had been stolen,
but he eventually admitted that he was driving the Saturn at
the time the shooting occurred. Matthews further told police
that Wofford and another man, Dominique Hairston, were pas-
sengers in the Saturn.
Wofford and Hairston were each charged in the district court
with unlawful discharge of a firearm and use of a weapon to
commit a felony. The State moved the court to consolidate
the two cases for trial pursuant to Neb. Rev. Stat. § 29-2002
(Reissue 2016). Wofford objected to the consolidation. He
argued, inter alia, that consolidation would prejudice him
because there was a real probability that the jury could find
him guilty by association with Hairston and because there was
a risk of inconsistent defenses between the two codefendants.
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STATE v. WOFFORD
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Hairston did not object to consolidation. The court rejected
Wofford’s arguments and sustained the State’s motion to con-
solidate the two cases for trial.
During jury selection for the consolidated trial, Wofford
raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Wofford noted that both
he and Hairston were African-American. He further noted that
only 1 out of the 62 potential jurors included in the venire
was African-American and that the State used a peremptory
strike on the sole African-American. Hairston joined Wofford’s
Batson challenge. The prosecutor responded to the challenge
by stating that his reason for striking the potential juror was
because “numerous times during questioning, he explained that
he had religious beliefs that, yes, he could vote with the group,
but he would not be able to judge somebody on an individual
basis.” The prosecutor stated that he did not think the potential
juror would be appropriate based on his “hesitancy to be able
to make a judgment based on his religious beliefs on an indi-
vidual basis.”
In connection with the Batson discussion, the prosecutor
appeared to be referring to the voir dire of the potential juror
wherein the prosecutor asked, “[W]hen you go back to the jury
room, you’re going to vote, and you’re going to vote guilty
or innocent. Do your religious beliefs prevent you from doing
that as an individual?” The potential juror responded, “Yes, it
does.” The prosecutor followed up by asking, “You wouldn’t
be able to set aside your religious beliefs and give . . . Wofford
and . . . Hairston a fair trial?,” to which the potential juror
responded “No.” At that point in the voir dire, the State chal-
lenged the potential juror for cause. The court questioned the
potential juror further and asked whether the potential juror
would be comfortable judging others as part of a group, even
in light of his religious beliefs. The potential juror responded
to the court, “As a group I can, yeah.” The court asked further
questions regarding whether the potential juror meant that he
would simply go along with the group’s decision or whether
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he would make his own decision. The juror replied, “Based on
the evidence, if I disagree, yes, I will stand . . . my ground.”
Thereafter, the State appeared to abandon its challenge for
cause but used one of its peremptory challenges to strike the
potential juror.
In the Batson challenge, after the State gave its reasons
for striking the potential juror, the court ruled that the State’s
reasons for removal were acceptable. Wofford and Hairston
then argued that the State’s reasons were pretextual because
the potential juror’s statements “arose more from a language
problem than anything else” and that the potential juror did
not appear to fully understand the prosecutor’s questions.
They noted that when the potential juror was asked “more
pointed, direct questions, can you be fair and impartial, will
you make up your own mind and not be swayed by the
group, he said yes to all that.” The court then found that
the reasons given by the State were “neutral and not racial
based,” and it therefore denied Wofford and Hairston’s Batson
challenge.
Matthews, who was charged with the same offenses as
Wofford and Hairston but whose case was not consolidated
with their trial, testified at Wofford and Hairston’s consolidated
trial. Matthews testified that on July 30, 2015, he was driving
his Saturn and Wofford and Hairston were passengers, Wofford
riding in the back seat on the passenger side and Hairston in
the front passenger seat. Matthews first noticed the Oldsmobile
in front of his Saturn when he was stopped at a light at the
intersection of 30th and Q Streets. Matthews testified that
Hairston said that he recognized the Oldsmobile. After going
through the intersection of 30th and Q Streets, Matthews
moved into the left lane to pass the Oldsmobile, which was in
the right lane. As he was passing the Oldsmobile, Matthews
heard three shots coming from the back seat of his Saturn,
where Wofford was located. Matthew testified that he then saw
Hairston pull out a handgun, lean out the window, and fire six
or seven shots.
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The State presented other evidence including, inter alia,
testimony by various police officers who had investigated the
shooting. Testimony by officers indicated that, based on shell
casings found at the scene of the shooting, the shots fired
at the Oldsmobile had been fired from two different guns.
During the testimony of one of the officers, the State offered
into evidence a surveillance camera video that was taken from
a restaurant located near the site of the shooting and which
depicted the Saturn passing the Oldsmobile as the shooting
occurred. The video was received into evidence without objec-
tion, and the video was played for the jury while the State
questioned the officer regarding what was being depicted in
the video.
After the State rested its case, Wofford and Hairston moved
the court to dismiss on the basis that the State had not shown
a prima facie case. The court overruled the motion to dismiss.
Wofford chose not to testify in his own defense. Hairston
testified in his own defense and generally testified that
while he had ridden with Matthews in Matthews’ car on
July 30, 2015, he did not ride in Matthews’ car at a time
when Wofford was a passenger, and that he did not fire any
shots out of Matthews’ car. Hairston did not testify that
Wofford had been in Matthews’ car at any time on July 30,
and he did not testify that Wofford had fired any shots from
Matthews’ car.
The case was submitted to the jury. During deliberations,
the jury sent a request asking for a “t.v. for video please.” The
court agreed to the request; however, a laptop computer rather
than a television was sent to the jury to be used for viewing the
surveillance video.
The jury rendered verdicts finding Wofford guilty on both
counts. Sometime after the jury was dismissed, Wofford’s
counsel was approached by one of the jurors, who told him that
during deliberations, the jury had viewed a “mirror-image” of
the surveillance video that had been played in court. Wofford’s
counsel later spoke with the jury foreperson, who said that he
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and another juror had used a feature on the laptop computer
that had been provided to the jury to play a reverse or mirror
image of the surveillance video. The foreperson further said
that after viewing the mirror image, they had called over other
jurors to view the mirror image. The foreperson and another
juror told counsel that when they viewed the mirror image,
they could see an arm coming out of the back seat window of
the vehicle and a front-seat passenger in a white shirt, and that
they had not noticed these things when they had viewed the
video in the original manner.
Wofford filed a motion for a new trial in which he alleged
two bases for a new trial: First, Wofford alleged that there was
an irregularity in the proceedings because during the jury’s
deliberation, the court provided it with a laptop computer
which allowed jurors to view a mirror image of the surveil-
lance. Second, Wofford alleged that that there was jury miscon-
duct because the jury viewed a mirror image of the surveillance
video; he argued that the mirror image was extraneous preju-
dicial information that was not presented in court. The court
overruled Wofford’s motion for a new trial and his request for
an evidentiary hearing on the motion.
The court thereafter sentenced Wofford to imprisonment for
20 to 30 years for unlawful discharge of a firearm and to an
additional term of imprisonment for 20 to 30 years for use of
a weapon to commit a felony. The court ordered the two sen-
tences to be run consecutively to each other.
Wofford appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Wofford claims that the district court erred when it (1) sus-
tained the State’s motion to consolidate his trial with Hairston’s;
(2) overruled his challenge under Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the jury
selection process; and (3) allowed the jury unsupervised and
unfettered access to view the surveillance video during delib-
erations. Wofford further claims that there was insufficient
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evidence to support his convictions and that the court imposed
excessive sentences.
STANDARDS OF REVIEW
[1] A trial court’s ruling on a motion for consolidation of
prosecutions properly joinable will not be disturbed on appeal
absent an abuse of discretion. State v. Stricklin, 290 Neb. 542,
861 N.W.2d 367 (2015).
[2] 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. It reviews for clear error a trial
court’s factual determination regarding whether a prosecu-
tor’s race-neutral explanation is persuasive and whether the
prosecutor’s use of a peremptory challenge was purposefully
discriminatory. State v. Clifton, 296 Neb. 135, 892 N.W.2d
112 (2017).
[3] A trial court’s decision to allow a jury during delibera-
tions to rehear or review nontestimonial evidence is reviewed
by an appellate court for an abuse of discretion. See State v.
Vandever, 287 Neb. 807, 844 N.W.2d 783 (2014).
[4] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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. 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. Mendez-Osorio, 297 Neb.
520, 900 N.W.2d 776 (2017).
[5,6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Jones, 297 Neb. 557, 900 N.W.2d 757
(2017). A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
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depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. Id.
ANALYSIS
District Court Did Not Abuse Its Discretion When
It Sustained Motion to Consolidate Wofford’s
and Hairston’s Cases for Trial.
Wofford claims that the district court erred when it sustained
the State’s motion to consolidate his trial with that of Hairston.
We conclude that the court did not abuse its discretion.
[7,8] We note first that there is no constitutional right to
a separate trial and that instead, the right is statutory and
depends upon a showing that prejudice will result from a
joint trial. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367
(2015). See § 29-2002. The propriety of a joint trial involves
two questions: whether the consolidation is proper because
the defendants could have been joined in the same indictment
or information, and whether there was a right to severance
because the defendants or the State would be prejudiced by
an otherwise proper consolidation of the prosecutions for trial.
State v. Stricklin, supra. The burden is on the party challenging
a joint trial to demonstrate how and in what manner he or she
was prejudiced. Id.
[9] We have stated that consolidation is proper if the offenses
are part of a factually related transaction or series of events in
which both of the defendants participated. Id. Wofford does
not appear to dispute that the charges he and Hairston faced
were part of a factually related transaction or series of events.
Further, we note that Wofford and Hairston were charged
with the same offenses and that the charges against each of
them arose from their alleged involvement in the July 30,
2015, shooting.
Instead, Wofford argues that the district court’s consolida-
tion of the two cases was an abuse of discretion because it
prejudiced him and deprived him of a fair trial. Wofford asserts
that he was prejudiced by the consolidated trial because the
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jury may have been misled by evidence implicating Hairston
and may have found culpability on Wofford’s part based on
guilt by association with Hairston. Wofford also contends that
he was prejudiced because of the testimony of Matthews, a
codefendant whose trial was not consolidated with that of
­
Wofford and Hairston. Wofford further argues that he was
prejudiced because while he chose not to testify in his defense,
Hairston did testify in his own defense, and because he admit-
ted certain things, such as an association with Matthews, which
the jury might have used as evidence against Wofford.
We disagree with Wofford’s assertion that consolidation
unfairly prejudiced him. Regarding Wofford’s argument that
he was prejudiced as a result of guilt by association with
Hairston, we agree with the State’s contention that guilt by
association is a risk present any time codefendants’ trials are
consolidated and that such risk may be adequately amelio-
rated by proper jury instruction. In this case, the district court
instructed the jury that it “must come to a separate decision
regarding each Defendant.” Also, the risk of guilt by associa-
tion in this case appeared small. This does not appear to be a
case where the evidence against Hairston was much s­tronger
than that against Wofford. Instead, the same evidence, in par-
ticular Matthews’ testimony, seemed to implicate both equally.
Also, contrary to Wofford’s contention that he and Hairston
each relied on a defense of exonerating himself by implicat-
ing the other, we note that when Hairston testified in his own
defense, he generally denied being involved in the shoot-
ing. But Hairston did not implicate Wofford, and instead,
he testified that he did not know whether or not Wofford
was involved.
Having reviewed the record, we believe that there is no indi-
cation that any of the evidence admitted in this consolidated
case, including the testimony of Matthews and the testimony
of Hairston, would not have been admissible against Wofford
in a separate trial. To the extent Wofford argues that certain
testimony by Matthews should not have been admitted or that
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certain evidence Wofford offered regarding Matthews should
have been admitted, it is an argument focused on the evidence
ruling and it does not appear that the admission or refusal of
such evidence was influenced by the fact that Wofford’s trial
was consolidated with that of Hairston. Wofford does not sepa-
rately assign error to the admission or refusal of such evidence,
and therefore, we consider the argument only to the extent it
impacts the correctness of the court’s decision to consolidate
the trials.
[10] Because it appears that the rulings regarding the admis-
sibility of the evidence noted by Wofford would have been
the same in a separate trial, Wofford has failed to show that
the consolidation of his trial with that of Hairston caused him
prejudice. A defendant is not considered prejudiced by a join-
der where the evidence relating to both defendants would be
admissible in a trial of either defendant separately. See State v.
Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
We determine that the consolidation of Wofford’s trial with
that of Hairston was proper and that Wofford was not preju-
diced by the consolidation. The district court therefore did not
abuse its discretion when it sustained the State’s motion to
consolidate the trials, and we reject Wofford’s first assignment
of error.
District Court Did Not Err When It Overruled
Wofford’s Batson Challenge to the
Jury Selection Process.
Wofford claims that the district court erred when it over-
ruled his challenge under Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the jury selection
process. We conclude that the court did not so err.
We note first that Wofford appears to argue that he chal-
lenged both the composition of the venire and the prosecutor’s
strike of the sole African-American potential juror. However,
other than noting that “only one out of 62 [potential] jurors
was black,” the record does not show that Wofford developed
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an attempt to challenge the composition of the venire. That is,
Wofford did not attempt to make a showing that the underrep-
resentation of racial minorities was “‘due to systematic exclu-
sion of the group in the jury-selection process’” as would be
required for such a challenge. See State v. Thomas, 262 Neb.
985, 1002, 637 N.W.2d 632, 652 (2002). Instead, Wofford’s
challenge at the district court focused on the State’s use of a
peremptory strike to remove the sole African-American poten-
tial juror, and on appeal, we focus on that challenge.
[11] A prosecutor is ordinarily entitled to exercise permit-
ted peremptory challenges for any reason at all, if that reason
is related to his or her view concerning the outcome of the
case. State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017).
However, the U.S. Supreme Court in Batson v. Kentucky,
supra, held that the Equal Protection Clause forbids the pros-
ecutor from challenging jurors solely because of their race.
[12] Determining whether a prosecutor impermissibly
struck a prospective juror based on race is a three-step proc­
ess. State v. Clifton, supra. In this three-step process, the
ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.
Id. 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 determine whether the
defendant has carried his or her burden of proving purposeful
discrimination. Id.
[13] Once the trial court has decided the ultimate question of
intentional discrimination, however, the question on appeal is
only whether the prosecutor’s reasons were facially race neu-
tral and whether the trial court’s final determination regarding
purposeful discrimination was clearly erroneous. Id. Whether a
prosecutor’s reasons for using a peremptory challenge are race
neutral is a question of law. Id.
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[14] We conclude that in this case, the prosecutor’s stated
reason for exercising his peremptory strike was race neutral.
The prosecutor generally stated that he struck the prospective
juror because he was concerned by the prospective juror’s
statements to the effect that because of his religious beliefs, he
did not think that he could judge another person. In determin-
ing whether a prosecutor’s explanation for using a peremptory
challenge is race neutral, a court is not required to reject the
explanation because it is not persuasive, or even plausible; it is
sufficient if the reason is not inherently discriminatory. Id. Only
inherently discriminatory explanations are facially invalid. Id.
The prosecutor in this case gave a reason that did not indicate
discrimination based on the prospective juror’s race.
We next consider whether the district court’s final determi-
nation regarding purposeful discrimination was clearly errone-
ous. The third step of the inquiry under Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), requires
the trial court to evaluate the persuasiveness of the justifi-
cation proffered by the prosecutor; it ultimately determines
whether the explanation was a pretext for discrimination. State
v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017). A trial
court’s determination that the prosecutor’s race-neutral expla-
nation should be believed frequently involves its evaluation
of a prosecutor’s credibility, which requires deference to the
court’s findings absent exceptional circumstances. Id.
The question before us is whether the district court clearly
erred in finding that the prosecutor’s race-neutral explanation
for the peremptory strike was genuine and not pretextual, and
we may consider the rationality of the prosecutor’s reason in
our inquiry. Id. A prosecutor’s intuitive assumptions, inarticu-
lable factors, or even hunches can be proper bases for rejecting
a potential juror, so long as the reasons are not based on imper-
missible group bias. Id.
We believe that the prosecutor’s stated reason for striking
the juror appears to be a valid reason that was not a pretext for
racial discrimination. The prosecutor was concerned whether
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the potential juror’s stated beliefs would prevent him from
participating in deliberations because of his reluctance to judge
Wofford. The potential juror had made statements to this effect,
and although the potential juror also made other statements
indicating that he could make such a judgment as part of a
group and that he could render a fair decision, the potential
juror’s initial statements could have given the prosecutor valid
cause for concern.
Based on our review of the record, we determine the district
court did not clearly err when it found that the prosecutor’s
race-neutral explanation for striking the sole African-American
prospective juror was valid and that the use of the peremptory
challenge was not purposefully discriminatory. We therefore
reject Wofford’s claim that the district court erred when it
denied his Batson challenge.
District Court Did Not Abuse Its Discretion When
It Allowed the Jury Access to Surveillance
Video During Deliberations.
For his next assignment of error, Wofford claims that the
district court erred when it allowed the jury unsupervised and
unfettered access to view the surveillance video during delib-
erations. We determine that the district court did not err.
[15] As a preliminary matter, we note that in his brief,
Wofford argues that the court erred when it overruled his
motion for a new trial based on (1) alleged irregularities in the
proceedings because the jury was provided a laptop computer
to view the surveillance video and (2) alleged jury misconduct
because the jury used the laptop computer to view a reversed
image of the surveillance video. This claim differs from his
assignment of error. An appellate court does not consider
errors which are argued but not assigned. State v. Jedlicka,
297 Neb. 276, 900 N.W.2d 454 (2017). We therefore do not
consider Wofford’s arguments related to the overruling of the
motion for a new trial in this appeal, and instead, we limit
our consideration to the error assigned. However, we note
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that in his appeal, Wofford’s codefendant, Hairston, raised the
court’s overruling of the motion for a new trial related to the
jury’s consideration of the video and that we concluded that
the district court did not abuse its discretion when it overruled
Hairston’s motion for a new trial based on alleged jury miscon-
duct. State v. Hairston, ante p. 251, ___ N.W.2d ___ (2017).
We turn to consideration of the error assigned by Wofford.
[16] A trial court does not have discretion to submit testimo-
nial materials to the jury for unsupervised review, but the trial
court has broad discretion to submit to the jury nontestimonial
exhibits, in particular, those constituting substantive evidence
of the defendant’s guilt. See State v. Henry, 292 Neb. 834, 875
N.W.2d 374 (2016). The surveillance video in this case was not
testimony but was instead a nontestimonial exhibit that consti-
tuted substantive evidence of Wofford’s guilt. Whether or not
Wofford could be identified in the video, the video depicted the
shooting for which he was charged, and the video corroborated
other evidence. Because the DVD’s containing the surveillance
video were nontestimonial exhibits that contained substantive
evidence of Wofford’s guilt, the district court had broad discre-
tion to submit the DVD’s to the jury for use during delibera-
tions. We find no abuse of discretion.
To the extent Wofford argues that it was improper to allow
the jury to use the laptop computer to view the video, it is
clear that some sort of device was necessary to allow the jury
to view the DVD’s, and there is no indication in the record that
Wofford objected to the particular device—the laptop com-
puter—that was given to the jury at the time it was given. We
conclude that the court did not abuse its discretion by doing so,
and we reject this assignment of error.
Evidence Was Sufficient to Support
Wofford’s Convictions.
Wofford claims that there was insufficient evidence to sup-
port his convictions. Because the evidence was sufficient, we
reject this assignment of error.
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We note that Wofford framed his assignment of error as a
challenge to the sufficiency of the evidence, but in his argu-
ment, he asserts that the district court erred when it overruled
his motion to dismiss at the close of the State’s case. We have
held that a defendant who moves for dismissal or a directed
verdict at the close of the evidence in the State’s case in chief
in a criminal prosecution, and who, when the court overrules
the dismissal or directed verdict motion, proceeds with trial
and introduces evidence, waives the appellate right to chal-
lenge correctness in the trial court’s overruling of the motion
for dismissal or a directed verdict but may still challenge the
sufficiency of the evidence. State v. Olbricht, 294 Neb. 974,
885 N.W.2d 699 (2016). Because Wofford framed his assign-
ment of error as a challenge to the sufficiency of the evidence,
we consider his arguments as such and we need not consider
whether he waived his right to challenge the court’s overruling
of his motion to dismiss.
Wofford generally contends that the State’s evidence was
not sufficient to prove a prima facie case for the charges
against him. He argues that the testimony of the State’s wit-
nesses was not corroborated by any physical evidence such as
DNA testing or fingerprinting that would identify Wofford as
the person who fired the shots. He further argues that none of
the occupants of the vehicle into which the shots were fired
identified him as the shooter, that no weapon was found in his
possession, and that there was no gunpowder residue to con-
nect him to the shooting. Wofford further contends that the
testimony of his codefendants, Matthews and Hairston, was
“so self serving and so extremely doubtful in character” that
it lacked probative value to support his convictions. Brief for
appellant at 19.
Physical and testimonial evidence in this case showed that
shots had been fired from the Saturn into the Oldsmobile on
July 30, 2015. Matthews testified that Wofford was sitting on
the passenger side of the back seat of the Saturn that Matthews
was driving, and Matthews heard shots being fired from the
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back seat. Such testimonial evidence, if believed by the jury,
was, in combination with the other evidence presented by the
State, sufficient to show Wofford’s guilt for the crimes charged.
The absence of physical evidence, forensic or otherwise, iden-
tifying Wofford as the shooter does not necessarily negate a
finding that he fired the shots. To the extent Wofford argues
that Matthews’ testimony was not credible, when reviewing
a claim of sufficiency of the evidence, we do not pass on the
credibility of witnesses, because such matters are for the finder
of fact. See State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d
776 (2017). The jury as fact finder in this case had the duty to
assess Matthews’ credibility, and the jury was able to consider
the extent to which Matthews’ self-interest or other factors
affected his credibility.
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.
The jury in this case could reasonably have found Matthews’
testimony credible and, viewing his testimony in connection
with the other evidence in this case, found Wofford guilty of
the crimes charged.
We conclude that the evidence was sufficient to support
Wofford’s convictions. We reject this assignment of error.
District Court Did Not Impose
Excessive Sentences.
Wofford claims that the court imposed excessive sentences.
We conclude that the court did not abuse its discretion when it
sentenced Wofford.
Wofford was convicted of unlawful discharge of a firearm at
an occupied motor vehicle, which is a Class ID felony under
Neb. Rev. Stat. § 28-1212.02 (Reissue 2016). The sentencing
range for a Class ID felony is imprisonment for a mandatory
minimum of 3 years and maximum of 50 years. Neb. Rev. Stat.
§ 28-105(1) (Cum. Supp. 2014). He was also convicted of use
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of a firearm to commit a felony, which is a Class IC felony
under Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016).
The sentencing range for a Class IC felony is imprisonment for
a mandatory minimum of 5 years and maximum of 50 years.
§ 28-105(1). The district court sentenced Wofford to imprison-
ment for 20 to 30 years for unlawful discharge of a firearm and
to a consecutive term of imprisonment for 20 to 30 years for
use of a weapon to commit a felony. The sentences were within
the statutory ranges, and we therefore review the sentences for
an abuse of discretion by the district court. See State v. Jones,
297 Neb. 557, 900 N.W.2d 757 (2017).
[17-19] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused
its discretion in considering and applying the relevant factors
as well as any applicable legal principles in determining the
sentence to be imposed. State v. Stone, ante p. 53, 902 N.W.2d
197 (2017). When imposing a sentence, the sentencing court
is to consider the defendant’s (1) age, (2) mentality, (3) educa-
tion 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 com-
mission of the crime. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observations of the defendant’s demeanor and atti-
tude and all of the facts and circumstances surrounding the
defendant’s life. State v. Jackson, 297 Neb. 22, 899 N.W.2d
215 (2017).
Wofford contends that the district court did not adequately
consider all these factors when it imposed his sentences.
He asserts in particular that the court did not give adequate
weight to the fact that he had no prior felony convictions or
convictions for assaultive or violent behavior; that he had
a long, stable, and consistent employment history; that he
had no bond violations after bonding out of jail and had not
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lost any good time while he was incarcerated prior to bond-
ing out; and that he had strong family ties, including two
minor children.
The record of the sentencing hearing indicates that these
factors were presented to the court, and the court acknowl-
edged Wofford’s arguments. The court indicated that when it
determined Wofford’s sentences, it also considered the serious-
ness of the crime and testing that showed that Wofford was at
a very high risk to reoffend.
The sentences imposed by the district court were in the
middle of the statutory ranges for the offenses. Nothing in the
record indicates that the court failed to consider the mitigating
factors advanced by Wofford or that it did not give adequate
weight to such factors when considered in light of the factors
cited by the court to justify the sentences. We find no abuse of
discretion in the sentencing, and we therefore reject Wofford’s
claim of excessive sentences.
CONCLUSION
Having rejected Wofford’s assignments of error, we affirm
Wofford’s convictions and sentences.
A ffirmed.
Wright, J., not participating in the decision.