State v. Dominguez ( 2015 )

Nebraska Advance Sheets
STATE v. DOMINGUEZ 477
Cite as 290 Neb. 477court did so. Instead, Stevens generally asserts that the sen-
tence of imprisonment exceeds the minimum period consistent
with the protection of the public, the gravity of the offense,
and his rehabilitative needs.50 He emphasizes his significantly
troubled childhood and what he characterizes as a “minimal
criminal history.”51
The record reflects that Stevens has been involved in the
juvenile system since he was 12 years old and that he has been
in and out of foster homes and other care facilities. He has
struggled with drugs and alcohol and has been sent to a youth
rehabilitation and treatment center. At the same time, however,
the record shows that he consistently refuses to follow rules,
that he has escaped from the treatment center, and that he has
been involved in at least three felonies since 2010. We con-
clude the district court did not abuse its discretion in sentenc-
ing Stevens to 6 to 10 years’ imprisonment.
CONCLUSION
For the foregoing reasons, we affirm Stevens’ conviction
and sentence.
Affirmed.
50
See State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).
51
Brief for appellant at 26.
State of Nebraska, appellee, v.
Alfredo V. Dominguez, appellant.
___ N.W.2d ___
Filed March 27, 2015. No. S-14-047.
1. Courts: Juvenile Courts: Jurisdiction. In determining whether a case should
be transferred to juvenile court, a court should consider those factors set forth
in Neb. Rev. Stat. § 43-276 (Cum. Supp. 2012). In order to retain the proceed-
ings, the court need not resolve every factor against the juvenile, and there are
no weighted factors and no prescribed method by which more or less weight is
assigned to a specific factor. It is a balancing test by which public protection and
societal security are weighed against the practical and nonproblematical rehabili-
tation of the juvenile.
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478 290 NEBRASKA REPORTS
2. Courts: Juvenile Courts: Jurisdiction: Evidence. When a district court’s basis
for retaining jurisdiction over a juvenile is supported by appropriate evidence, it
cannot be said that the court abused its discretion in refusing to transfer the case
to juvenile court.
3. Trial: Joinder. There is no constitutional right to a separate trial. Instead, the
right is statutory and depends upon a showing that prejudice will result from a
joint trial.
4. Trial: Joinder: Proof: Appeal and Error. The burden is on the party challeng-
ing a joint trial to demonstrate how and in what manner he or she was prejudiced.
5. Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for consoli-
dation of prosecutions properly joinable will not be disturbed on appeal absent an
abuse of discretion.
6. Trial: Joinder: Indictments and Informations. The propriety of a joint trial
involves two questions: whether the consolidation is proper because the defend­
ants 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.
7. Trial: Joinder: Jurisdiction. A court should grant a severance only if there is a
serious risk that a joint trial could compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence. Prejudice serious enough to meet this standard may occur when evi-
dence that the jury should not consider against a defendant and that would not be
admissible against a defendant if a defendant were tried alone is admitted against
a codefendant, when many defendants are tried together in a complex case and
they have markedly different degrees of culpability, when essential exculpatory
evidence that would be available to a defendant tried alone would be unavailable
in a joint trial, or in other situations.
8. Trial: Joinder: Proof. To prevail on a severance argument, a defendant must
show compelling, specific, and actual prejudice from the court’s refusal to grant
the motion to sever.
9. Pleadings: Parties: Judgments: Appeal and Error. On appeal, a denial of a
motion to sever will not be reversed unless clear prejudice and an abuse of discre-
tion are shown.
10. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
11. Witnesses: Impeachment. Generally, the credibility of a witness may be attacked
by any party, including the party who called the witness.
12. ____: ____. One means of attacking the credibility of a witness is by showing
inconsistency between his or her testimony at trial and what he or she said on
previous occasions. The trial court has considerable discretion in determining
whether testimony is inconsistent with prior statements.
13. ____: ____. As a general rule, a witness makes an inconsistent or contradictory
statement if he or she refuses to either deny or affirm that he or she did, or if
he or she answers that he or she does not remember whether or not he or she
made it.
Nebraska Advance Sheets
STATE v. DOMINGUEZ 479
Cite as 290 Neb. 47714. Evidence: Hearsay. It is elementary that out-of-court statements offered to prove
the truth of the matter asserted are hearsay. Thus, prior extrajudicial statements
of a witness may be received into evidence for the purpose of assisting the jury
in ascertaining the credibility of the witness, but unless they are otherwise admis-
sible, they may not be considered as substantive evidence of the facts declared in
the statements.
15. Witnesses: Impeachment. A party cannot impeach his or her own witness with-
out limitation.
16. Witnesses: Impeachment: Prior Statements: Juries. The rule permitting a
party to impeach his or her own witness may not be used as an artifice by which
inadmissible matter may be gotten to the jury through the device of offering a
witness whose testimony is or should be known to be adverse in order, under
the name of impeachment, to get before the jury for its consideration a favorable
ex parte statement the witness had made.
17. Witnesses: Impeachment: Prior Statements: Case Disapproved. A party’s
impeachment of its own witness under Neb. Rev. Stat. § 27-607 (Reissue 2008)
with a prior inconsistent statement is not necessarily dependent upon a showing
that the trial testimony sought to be impeached caused affirmative damage to the
party’s case. To the extent that State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885(1982), and State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985), can be read to
hold otherwise, they are disapproved.
18. Jury Instructions: Appeal and Error. The determination of whether a jury
instruction is correct is a question of law, and an appellate court resolves ques-
tions of law independently of the determination reached by the trial court.
19. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
20. Criminal Law: Evidence: Appeal and Error. In reviewing 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 elements of the crime
beyond a reasonable doubt.
21. Sentences: Appeal and Error. An appellate court will not disturb sentences that
are within statutory limits, unless the district court abused its discretion in estab-
lishing the sentences.
22. Sentences. When imposing a sentence, the sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense and (8)
the violence involved in the commission of the offense. The sentencing court is
not limited to any mathematically applied set of factors.
Nebraska Advance Sheets
480 290 NEBRASKA REPORTS
23. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender,
Jennifer M. Houlden, and Keenan Gallagher, Senior Certified
Law Student, for appellant.
Jon Bruning, Attorney General, and Austin N. Relph for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
After a jury trial, Alfredo V. Dominguez was convicted of
robbery and sentenced to imprisonment for 6 to 10 years. A
codefendant, Malique A. Stevens, was tried with Dominguez
and convicted of the same crime. In this appeal, Dominguez
challenges various procedural and evidentiary rulings. We find
no merit in any of his assignments of error and therefore affirm
his conviction and sentence.
BACKGROUND
On the evening of December 3, 2012, Janelle Yaunk parked
her car in the lot of an apartment complex in north Lincoln,
Nebraska, where a friend resided. As she walked toward the
entrance of the building, she was approached by a young
man who displayed a gun. Two other young men soon joined
him. All three wore hoods over their heads and foreheads,
and the rest of their faces, except their eyes, were covered
with bandannas.
The man with the gun ordered Yaunk to give him money.
When she said she had none, he struck her in the face with the
gun, and she sat on the ground. One of the other two men took
her car keys and cell phone from her. The men then made her
start the car for them before they ordered her out of the vehicle
and drove away in it.
Nebraska Advance Sheets
STATE v. DOMINGUEZ 481
Cite as 290 Neb. 477Yaunk’s friend arrived soon after, and they called the police.
Shortly after the robbery was reported, a Lincoln police officer
observed the stolen car and attempted to stop it. Three indi-
viduals in the car jumped out of it while it was still moving and
ran away. The officer attempted to give chase but was unable
to apprehend them. A cell phone that belonged to Orlando Neal
was found in the abandoned vehicle. A pellet gun was found
approximately 30 feet from the vehicle.
Neal eventually confessed to the robbery and was sub-
sequently convicted and sentenced. In his initial statements
to the police, he implicated Stevens and Dominguez as the
other two participants in the robbery. In a subsequent depo-
sition, however, Neal stated Stevens and Dominguez were
not involved. Investigators found Stevens’ fingerprints on the
exterior of Yaunk’s car, and this evidence was admitted at trial.
Investigators also determined that DNA found on the pellet
gun came from Dominguez, and this evidence was admitted
at trial.
Both Stevens and Dominguez were 15 years old at the time
the robbery was committed. They were each charged with one
count of robbery in separate informations filed in the district
court for Lancaster County. The cases were then consolidated
for trial. Dominguez filed a motion to transfer his case to
juvenile court. After conducting an evidentiary hearing on the
motion, the district court found good cause to deny the transfer.
After the fingerprint evidence implicating Stevens was discov-
ered, Dominguez filed a motion requesting his trial be severed,
but the motion was denied.
Yaunk testified and described the robbery. She identified
Stevens and Dominguez in court as two of the perpetrators.
Timothy Robinett, a Lincoln cabdriver, testified that the night
of the robbery, he had been at a Walgreens store near the scene
of the robbery and three young men had attempted to hire his
cab. Over Stevens’ objection, Robinett testified that he was
50- to 75-percent sure that Stevens was one of the young men.
Robinett was unable to identify the others.
The State also called Dakota Grant, Stevens’ brother. Grant
was arrested on December 4, 2012, for the robbery, along
with Stevens and Dominguez. He testified that before they
Nebraska Advance Sheets
482 290 NEBRASKA REPORTS
were arrested, he was with Stevens and Dominguez and heard
them talking, but did not hear what they were saying. He also
testified that he did not remember talking to a police officer
after he was arrested. After a court recess, Grant stated that
on December 4, Stevens and Dominguez were looking at a
newspaper Web site and reading and talking about an article
describing the robbery and carjacking. The State asked Grant
whether he had told the police that Stevens and Dominguez
had been talking about the actual robbery, not the article, but
Dominguez’ objection to the question was sustained.
Neal also testified at trial. He testified that he had come
to Lincoln a few days before December 4, 2012, to meet up
with Stevens and Dominguez. He testified that he was at the
Walgreens store with Stevens and Dominguez the evening
of December 3 and that they tried to get a cab, but that then
they split up and went separate ways. Neal described how he
committed the robbery of Yaunk and stated that the two per-
sons with him at the time were not Stevens and Dominguez.
He admitted that he was stealing the car in order to get to
Dominguez’ home, where he was staying, and he stated that
he did not remember telling the police at the time of his arrest
the names of the persons he was with during the robbery. Over
objection, Neal was allowed to testify that he originally told
the police that Dominguez was with him at the time of the
robbery. Neal also testified that he used Stevens’ name when
talking to the police, but emphasized that he never said Stevens
took part in the robbery.
After hearing all the evidence, the jury convicted both
Stevens and Dominguez of robbery. Dominguez was subse-
quently sentenced to 6 to 10 years’ imprisonment, and he filed
this timely appeal.
ASSIGNMENTS OF ERROR
Dominguez assigns, restated, that the district court erred
in (1) denying his motion to transfer to juvenile court, (2)
denying his motion to sever his trial, (3) allowing the State
to impeach witnesses Grant and Neal with their prior incon­
sistent statements, (4) giving an aiding and abetting instruc-
tion, and (5) imposing an excessive sentence. He also assigns
Nebraska Advance Sheets
STATE v. DOMINGUEZ 483
Cite as 290 Neb. 477that the evidence adduced at trial was insufficient to sustain
the robbery conviction.
ANALYSIS
Motion to Transfer
to Juvenile Court
[1] When Dominguez moved to transfer his case to juvenile
court, the district court conducted a hearing pursuant to Neb.
Rev. Stat. § 29-1816(2)(a) (Cum. Supp. 2012). That statute
provides the “customary rules of evidence shall not be fol-
lowed at such hearing,” and requires consideration of the 15
factors set forth in Neb. Rev. Stat. § 43-276 (Cum. Supp.
2012). In order to retain the proceedings, the court need not
resolve every factor against the juvenile, and there are no
weighted factors and no prescribed method by which more
or less weight is assigned to a specific factor.1 It is a balanc-
ing test by which public protection and societal security are
weighed against the practical and nonproblematical rehabilita-
tion of the juvenile.2 After the court considers the evidence
in light of the § 43-276 factors, “the case shall be transferred
unless a sound basis exists for retaining the case.”3 The court
is required to “set forth findings for the reason for its decision”
on the motion to transfer.4
The burden of proving a sound basis for retention lies with
the State.5 Dominguez’ caseworker, Angela Miles, testified
for the State at the hearing on Dominguez’ motion to transfer
his case to juvenile court. Miles provided information about
Dominguez’ prior law violations and placements. She also
described the services that had been provided to Dominguez
in juvenile court. Summarized, the evidence showed that
Dominguez had been placed in shelter care, a group home,
foster care, and at a youth rehabilitation and treatment center
1
See State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
2
Id.3
§ 29-1816(2)(a).
4
§ 29-1816(2)(c).
5
State v. Goodwin, supra note 1.
Nebraska Advance Sheets
484 290 NEBRASKA REPORTS
(YRTC). He was in secure detention at least four times, and
had run away from a placement three times since 2010. He has
previously escaped from the YRTC. He was adjudicated for an
assault in 2008, an assault in 2009, and various criminal mis-
chief violations in 2010 and 2011. Dominguez was 11 years old
when he committed his first assault. There was also evidence
that Dominguez identifies with a gang.
Miles testified that Dominguez has received drug and alco-
hol testing, a psychological evaluation, an electronic monitor,
individual therapy, counseling, medical care, and transporta-
tion services. In general, he was uncooperative with many
of the services offered to him. Miles opined that the juve-
nile system had provided “all the services necessary” for
Dominguez and that there were “no additional ones” that
could be provided.
In its order denying Dominguez’ motion to transfer, the dis-
trict court considered each of the factors listed in § 43-276 that
were applicable. It noted that Dominguez had been previously
adjudicated in juvenile court on more than one law violation,
and had been in out-of-home placements since January 2010
as a result of juvenile court adjudications. The court noted that
he had been confined at the YRTC on at least two occasions
and had been in secure detention on at least four occasions,
but had been “on runaway status at least three different times
since January of 2010” while under commitment to the Office
of Juvenile Services, and had escaped from the YRTC fol-
lowing a commitment in July 2011. The court observed that
Dominguez had failed to take advantage of many treatment
options which had been offered to him, and had “a pattern of
absconding from placements designed to provide needed treat-
ment and engaging in conduct that places him and others at
risk of harm.”
The court further found that the charged offense was com-
mitted “in an aggressive and premeditated manner.” Based
upon Miles’ testimony, the court determined that Dominguez
“refused to cooperate with drug testing after testing posi-
tive, he refused to go to school, he refused to participate in
individual therapy and he refused to participate in drug and
Nebraska Advance Sheets
STATE v. DOMINGUEZ 485
Cite as 290 Neb. 477alcohol treatment.” The court concluded that Dominguez “has
demonstrated an unwillingness to participate in programming
through the juvenile court over a nearly three-year span” and
that “[h]is admitted involvement with a gang, coupled with
his history of violence[,] leads this court to conclude that not
only his best interests, but those of the public may require his
custody or supervision extend well beyond his minority.” The
court noted that under Neb. Rev. Stat. § 29-2204(3) (Cum.
Supp. 2012), it had the same dispositional alternatives as a
juvenile court would have under the Nebraska Juvenile Code.
After weighing the various factors, it concluded there was a
sound basis for retaining jurisdiction over the case.
[2] When a district court’s basis for retaining jurisdiction
over a juvenile is supported by appropriate evidence, it can-
not be said that the court abused its discretion in refusing to
transfer the case to juvenile court.6 That is the case here. The
record fully supports the reasoning of the district court in deny-
ing Dominguez’ motion to transfer the case to juvenile court.
We find no abuse of discretion in the court’s disposition of
the motion.
Motion to Sever
Dominguez originally agreed to have his trial conducted
jointly with the trial of Stevens. But after Stevens’ finger-
prints were found on the exterior of the robbery victim’s car,
Dominguez filed a motion to sever. The district court denied
the motion, and Dominguez argues on appeal that the court
erred in doing so.
[3-5] There is no constitutional right to a separate trial.7
Instead, the right is statutory and depends upon a showing
that prejudice will result from a joint trial.8 The burden is
on the party challenging a joint trial to demonstrate how and
in what manner he or she was prejudiced.9 A trial court’s
6
Id.7
State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
8
Id.; Neb. Rev. Stat. § 29-2002 (Reissue 2008).
9
State v. Foster, supra note 7.
Nebraska Advance Sheets
486 290 NEBRASKA REPORTS
ruling on a motion for consolidation of prosecutions prop-
erly joinable will not be disturbed on appeal absent an abuse
of discretion.10
[6] According to § 29-2002(2), the court may order two or
more informations to be tried together “if the defendants . . .
are alleged to have participated in the same act or transaction
or in the same series of acts or transactions constituting an
offense or offenses.” The court may order separate trials if “it
appears that a defendant or the state would be prejudiced by a
joinder of offenses . . . for trial together.”11 We have held:
“[T]he propriety of a joint trial involves two questions:
whether the consolidation is proper because the defend­
ants 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.”12
[7] A court should grant a severance only if there is a seri-
ous risk that a joint trial could compromise a specific trial
right of one of the defendants, or prevent the jury from mak-
ing a reliable judgment about guilt or innocence.13 Prejudice
serious enough to meet this standard may occur when evi-
dence that the jury should not consider against a defendant
and that would not be admissible against a defendant if a
defendant were tried alone is admitted against a codefendant,
when many defendants are tried together in a complex case
and they have markedly different degrees of culpability, when
essential exculpatory evidence that would be available to a
defendant tried alone would be unavailable in a joint trial, or
in other situations.14
[8,9] To prevail on a severance argument, a defendant must
show compelling, specific, and actual prejudice from the court’s
10
Id.
11
§ 29-2002(3).
12
State v. Foster, supra note 7, 286 Neb. at 836, 839 N.W.2d at 795, quoting
State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
13
See State v. Foster, supra note 7.
14
Id.
Nebraska Advance Sheets
STATE v. DOMINGUEZ 487
Cite as 290 Neb. 477refusal to grant the motion to sever.15 On appeal, a denial of a
motion to sever will not be reversed unless clear prejudice and
an abuse of discretion are shown.16
Here, there is no question that the two cases arose out of
the same act or transaction and were thus joinable for trial.
Dominguez was therefore required to show that joinder was
prejudicial in order to prevail on his motion to sever. He con-
tends that prejudice existed because the State had fingerprint
evidence linking Stevens to the stolen vehicle. He essen-
tially concedes that this evidence would have been admissible
against him even had he had a separate trial, but argues it was
nevertheless prejudicial because of the possibility that the jury
would find the evidence against Stevens so overwhelming that
it would necessarily conclude Dominguez must have partici-
pated in the robbery as well.
We rejected a similar argument made by Stevens in his
direct appeal, and we reach the same conclusion here. As we
noted in State v. Stevens,17 this was not a complicated case. The
jury was well aware that it was to decide whether one or both
of the defendants, Dominguez and Stevens, participated in the
robbery. The mere fact that fingerprint evidence linked Stevens
to the stolen vehicle was not specific and actual prejudice to
Dominguez. The district court did not abuse its discretion in
denying Dominguez’ motion to sever.
Impeachment of Grant
and Neal
Dominguez argues that the State was allowed to elicit
improper impeachment evidence from witnesses Grant and
Neal. As noted, both Grant and Neal were also arrested in con-
nection with the robbery.
The record is unclear as to whether Grant was ultimately
charged. Neal, however, confessed and had been convicted
prior to Dominguez’ trial. The State called both Grant and
Neal at trial. Grant testified that Stevens is his brother and
15
Id.16
Id.17
State v. Stevens, ante p. 460, ___ N.W.2d ___ (2015).
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488 290 NEBRASKA REPORTS
that Grant was with Stevens and Dominguez on the morning
after the robbery. Grant originally testified that during that
time, he could hear Stevens and Dominguez talking, but was
unable to hear what they were saying. He was then asked if he
spoke to a police officer after he was arrested later that day,
and he responded that he did not remember. The trial was then
recessed for the day.
When Grant resumed his testimony on the following day, he
stated that he heard Stevens and Dominguez talking and that
they were looking at a newspaper Web site and discussing the
carjacking/robbery. He recalled that they were talking about a
news article reporting the crime, but not talking as if they com-
mitted the crime. Grant was then asked if, after his arrest, he
told the police that Stevens and Dominguez had been talking
about the actual crime. Dominguez’ objection to that question
was sustained.
Neal testified that he came to Lincoln from Omaha, Nebraska,
on approximately December 2, 2012, to meet Stevens and
Dominguez. The three had been close in the past, and he con-
sidered them as his brothers. He admitted that he was with
Stevens and Dominguez at the Walgreens store near the scene
of the crime and near the time of the crime and that they tried
to get a cab there. He testified that Dominguez and Stevens left
soon after and that he decided to “jack a car.” He described the
robbery in some detail and stated that two other persons whose
names he did not know participated in the crime, but he denied
that Stevens and Dominguez were there. He stated that he
did not remember telling police that Stevens and Dominguez
participated in the robbery. Over an objection of improper
impeachment, Neal was then asked whether a police officer
had asked him at the time of his arrest for the names of his
accomplices, and Neal admitted that he had given the officer
Dominguez’ name. Neal also admitted that he had mentioned
Stevens’ name to police, although he stated that he had never
said Stevens was involved in the robbery.
[10,11] Dominguez argues on appeal that the district court
erred in permitting the State to impeach Grant and Neal
with prior inconsistent statements over objection. When the
Nebraska Advance Sheets
STATE v. DOMINGUEZ 489
Cite as 290 Neb. 477Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate court
reviews the admissibility of evidence for an abuse of discre-
tion.18 Generally, the credibility of a witness may be attacked
by any party, including the party who called the witness.19 This
principle, first articulated by this court in State v. Fronning20
and subsequently codified in the Nebraska rules of evidence,21
is a departure from the common-law voucher rule, which
“assumed that the party calling a witness vouched for his or
her credibility and, therefore, prohibited the party calling a
witness from attacking that person’s credibility,” subject to
certain exceptions.22
[12-14] One means of attacking the credibility of a witness
is by showing inconsistency between his or her testimony at
trial and what he or she said on previous occasions.23 The
trial court has considerable discretion in determining whether
testimony is inconsistent with prior statements.24 As a gen-
eral rule, a witness makes an inconsistent or contradictory
statement if he or she refuses to either deny or affirm that
he or she did, or if he or she answers that he or she does not
remember whether or not he or she made it.25 It is elementary
that out-of-court statements offered to prove the truth of the
matter asserted are hearsay.26 Thus, prior extrajudicial state-
ments of a witness may be received into evidence for the
18
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013); State v. Sellers,
279 Neb. 220, 777 N.W.2d 779 (2010).
19
Neb. Rev. Stat. § 27-607 (Reissue 2008); State v. Marco, 220 Neb. 96, 368
N.W.2d 470 (1985).
20
State v. Fronning, 186 Neb. 463, 183 N.W.2d 920 (1971).
21
§ 27-607.
22
R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-607 at 491
(2014). See, also, State v. Fronning, supra note 20; Welton v. State, 171
Neb. 643, 107 N.W.2d 394 (1961).
23
State v. Marco, supra note 19.
24
Id.25
Id.26
Neb. Rev. Stat. § 27-801(3) (Reissue 2008); State v. Marco, supra note 19.
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490 290 NEBRASKA REPORTS
purpose of assisting the jury in ascertaining the credibility of
the witness, but unless they are otherwise admissible, they
may not be considered as substantive evidence of the facts
declared in the statements.27
[15,16] A party cannot impeach his or her own witness with-
out limitation.28 In State v. Brehmer,29 we stated that the rule
permitting a party to impeach his or her own witness
“may not be used as an artifice by which inadmissible
matter may be gotten to the jury through the device of
offering a witness whose testimony is or should be known
to be adverse in order, under the name of impeachment,
to get before the jury for its consideration a favorable ex
parte statement the witness had made.”
One commentator refers to this as a “‘no artifice’” rule.30 In
State v. Marco,31 we cited with approval a federal case holding
that the prosecution should not be permitted
“to call a witness that it knew would not give it use-
ful evidence, just so it could introduce hearsay evi-
dence against the defendant in the hope that the jury
would miss the subtle distinction between impeachment
and substantive evidence—or if it didn’t miss it, would
ignore it.”
More recently, we have said that “a party may not use a prior
inconsistent statement of a witness under the guise of impeach-
ment for the primary purpose of placing before the jury sub-
stantive evidence which is not otherwise admissible.”32
An exception to the common-law voucher rule prohibit-
ing impeachment by a party of its own witness existed if the
calling party could show surprise and affirmative damage to
27
State v. Marco, supra note 19.
28
See id.29
State v. Brehmer, 211 Neb. 29, 44, 317 N.W.2d 885, 893 (1982). See
Wilson v. State, 170 Neb. 494, 103 N.W.2d 258 (1960).
30
Mangrum, supra note 22 at 492.
31
State v. Marco, supra note 19, 220 Neb. at 100-01, 368 N.W.2d at 473,
quoting United States v. Webster, 734 F.2d 1191 (7th Cir. 1984).
32
State v. Boppre, 243 Neb. 908, 926, 503 N.W.2d 526, 537 (1993).
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STATE v. DOMINGUEZ 491
Cite as 290 Neb. 477its case.33 In Brehmer,34 we noted that while it was no longer
necessary to show surprise in order to impeach one’s own wit-
ness with a prior inconsistent statement, the impeachment was
nevertheless improper, in part because there was no “affirma-
tive damage” to the prosecution’s case by the witness’ answers
at trial. We employed similar reasoning in Marco.
[17] There is tension between our reference to the “affirm­
ative damage” exception in the Brehmer and Marco cases
and our statement in State v. Price,35 decided before either
Brehmer or Marco, that “surprise” and “affirmative dam-
age” were exceptions to the voucher rule and that their rein-
statement under the rule stated in § 27-607 “would likely
engender unnecessary confusion.” We conclude that a party’s
impeachment of its own witness under § 27-607 with a prior
inconsistent statement is not necessarily dependent upon a
showing that the trial testimony sought to be impeached
caused affirmative damage to the party’s case. To the extent
that Brehmer and Marco can be read to hold otherwise, they
are disapproved.
The language of § 27-607 is similar to and patterned after
rule 607 of the Federal Rules of Evidence.36 When a Nebraska
Evidence Rule is substantially similar to a corresponding
federal rule of evidence, Nebraska courts will look to federal
decisions interpreting the corresponding federal rule for guid-
ance in construing the Nebraska rule.37 Summarizing federal
court decisions on this point, one commentator articulates the
limitation on the scope of rule 607:
[I]mpeachment of a party’s own witness by means of a
prior statement may not be employed as a “mere subter-
fuge” or for the “primary purpose of placing before the
33
See, Mangrum, supra note 22; 4 Michael H. Graham, Handbook of
Federal Evidence § 607:3 (7th ed. 2012); Annot., Propriety, Under Federal
Rule of Evidence 607, of Impeachment of Party’s Own Witness, 89 A.L.R.
Fed. 13 (1988).
34
State v. Brehmer, supra note 29, 211 Neb. at 42, 317 N.W.2d at 893.
35
State v. Price, 202 Neb. 308, 322, 275 N.W.2d 82, 90 (1979).
36
See Mangrum, supra note 22.
37
State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).
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492 290 NEBRASKA REPORTS
jury substantive evidence which is not otherwise admis-
sible” when the party is aware prior to calling the witness
that the witness will not testify consistent with the wit-
ness’ prior statement.38
This rule “focuses upon the content of the witness’ testimony
as a whole” so that “if the witness’ testimony is important in
establishing any fact of consequence significant in the context
of the litigation, the witness may be impeached as to any other
matter testified to by means of a prior inconsistent statement.”39
We conclude that these principles are consistent with the “no
artifice” rule employed in our prior cases.40
Because the State was not permitted to impeach Grant with
a prior inconsistent statement, we focus our attention on the
State’s direct examination of Neal. Without any reference
to his prior statement, Neal’s testimony established facts of
consequence to the prosecution. Specifically, his testimony
established that Stevens and Dominguez were with him in
the area where the robbery was committed, shortly before
it occurred, and that they shared his motive for finding free
transportation to Dominguez’ home. Neal’s testimony also
corroborated Robinett’s in-court identification of Stevens as
one of the three individuals who attempted to hire his cab.
This testimony, when considered together with Stevens’ fin-
gerprints found on Yaunk’s vehicle and Dominguez’ DNA
found on the gun, provided at least circumstantial evidence
that Stevens and Dominguez participated with Neal in com-
mitting the robbery.
Neal’s testimony that the other two perpetrators of the rob-
bery were not Stevens and Dominguez, but, rather, two persons
whose names he did not know, created an obvious issue of
credibility in his account of the crime. Reference to his prior
statement implicating Stevens and Dominguez was a legitimate
and proper means of impeachment. Because Neal provided key
evidence useful to the prosecution independent of his prior
38
4 Graham, supra note 33, § 607:3 at 234-40.
39
Id. at 240-41.
40
See, Mangrum, supra note 22; State v. Boppre, supra note 32; State v.
Price, supra note 35.
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STATE v. DOMINGUEZ 493
Cite as 290 Neb. 477statement linking Stevens and Dominguez to the robbery, we
cannot conclude that the State called him as a witness for the
primary purpose of placing his prior statement before the jury.
We conclude that the district court did not abuse its discretion
in permitting the State to impeach Neal, over objection, with
his prior inconsistent statement.
Aiding and Abetting
Instruction
Over Dominguez’ objection, the district court gave an aiding
and abetting instruction to the jury. It provided:
A defendant can be guilty of robbery even though he
personally did not commit any act involved in the crime
so long as he aided someone else to commit it. A defend­
ant aided someone else if:
(1) the defendant intentionally encouraged or intention-
ally helped another person to commit the robbery; and
(2) the defendant intended that the robbery be commit-
ted; or the defendant knew that the other person intended
to commit, or expected the other person to commit the
robbery; and
(3) the robbery in fact was committed by that other
person.
On appeal, Dominguez argues the instruction was improper
because there was no evidence to support it. He contends that
the evidence showed either he committed robbery or he did
not, and that the evidence cannot be construed to show he
aided and abetted a robbery.
[18,19] The determination of whether a jury instruction is
correct is a question of law, and an appellate court resolves
questions of law independently of the determination reached
by the trial court.41 In an appeal based on a claim of an erro-
neous 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.42
41
See State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
42
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005); State v. Wisinski,
268 Neb. 778, 688 N.W.2d 586 (2004).
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494 290 NEBRASKA REPORTS
We addressed a similar situation in State v. Spidell.43 There,
a man named “Jorstad” was arrested by police while in the act
of burglarizing a service station. Shortly after his arrest, Jorstad
told police that Robert Spidell had also been in the station with
him and had suggested the burglary. Spidell was arrested a few
minutes later a short distance away from the station, driving
Jorstad’s car. At trial, Spidell testified he had simply borrowed
Jorstad’s car that evening and had been out running errands
when he was arrested.
The district court gave an aiding and abetting instruc-
tion over Spidell’s objection. Spidell argued it was improper,
because the State’s theory was that he was an actual par-
ticipant in the robbery and the evidence supported only that
theory. But we reasoned the instruction was proper, in part
because the evidence was such that “the jury could . . . have
believed [Spidell] was present, merely aiding and abetting
as by driving the defendant’s vehicle, or giving assistance at
the scene by breaking the window, but not making entry.”44
We held:
Where the evidence in a prosecution for burglary is such
as to permit the jury to find that the defendant’s par-
ticipation with another in the crime was such as would
make him at common law either an accessory before the
fact, a principal in the second degree, or a principal, then
it is proper to give an instruction on aiding and abet-
ting . . . .45
This case is slightly different, because there was no indica-
tion that Dominguez acted as an accessory either before or
after the robbery. Instead, the evidence was that all three men
were involved in the robbery. Nevertheless, Yaunk testified
that only one man struck her with the gun and demanded her
money and that another man took her cell phone and keys. It
is possible the jury could have found the other two aided and
abetted these acts. Notably, the jury was instructed that to find
Dominguez guilty of robbery, it had to find he “took money
43
State v. Spidell, 194 Neb. 494, 233 N.W.2d 900 (1975).
44
Id. at 498, 233 N.W.2d at 903.
45
Id. at 498, 233 N.W.2d at 903-04.
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STATE v. DOMINGUEZ 495
Cite as 290 Neb. 477or personal property of any value” “with the intent to steal”
and “did so forcibly and by violence or by putting . . . Yaunk
in fear.” The aiding and abetting instruction was appropriate
here, because the jury could have determined that it was not
Dominguez who brandished the gun or took the cell phone and
keys, but that he nevertheless participated in the robbery.
Sufficiency of Evidence
Dominguez argues there was insufficient evidence to convict
him of robbery, largely because there was no way to identify
him as one of the participants in the robbery.
[20] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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 favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.46
Dominguez’ argument is without merit. Yaunk identified
him at trial as one of the perpetrators, his DNA was found on
the gun abandoned near the stolen vehicle, Neal’s testimony
placed him near the scene of the robbery near the time of the
robbery, and Grant’s testimony showed Dominguez demon-
strated an interest in the crime the morning after it occurred.
This evidence, if believed by the trier of fact, was more than
sufficient to convict him.
Excessive Sentence
[21] Dominguez argues the sentence of 6 to 10 years’
imprisonment was excessive. The 6- to 10-year sentence was
well within the statutory limits for robbery, which is a Class II
felony with a minimum of 1 year’s imprisonment and a maxi-
mum of 50 years’ imprisonment.47 An appellate court will not
46
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014); State v. Wiedeman,
286 Neb. 193, 835 N.W.2d 698 (2013).
47
Neb. Rev. Stat. §§ 28-105 and 28-324 (Reissue 2008 & Cum. Supp. 2014).
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496 290 NEBRASKA REPORTS
disturb sentences that are within statutory limits, unless the dis-
trict court abused its discretion in establishing the sentences.48
We thus can find it excessive only if we conclude the district
court abused its discretion in imposing it.
[22,23] When imposing a sentence, the sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the violence involved in the commission of
the offense.49 The sentencing court is not limited to any math-
ematically applied set of factors.50 The appropriateness of a
sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life.51
Dominguez contends the sentence was an abuse of discre-
tion, because the district court did not adequately consider that
he was only 15 years old at the time of the offense, that he had
no prior felonies, that he had a turbulent childhood, and that he
could benefit from treatment, not incarceration.
But a review of the sentencing order shows the district
court considered all of these factors. What Dominguez is
really contesting is the weight the court gave those factors.
A sentencing court has considerable discretion in imposing
sentences, and in light of all the evidence, the district court
did not abuse its discretion in imposing a sentence of 6 to 10
years’ imprisonment.
CONCLUSION
For the foregoing reasons, we affirm Dominguez’ conviction
and sentence.
Affirmed.
48
State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
49
See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
50
Id.51
Id.