State v. Heng ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/12/2017 01:10 AM CST
- 317 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
State of Nebraska, appellee, v.
Carl A. Heng, appellant.
___ N.W.2d ___
Filed December 5, 2017. No. A-16-964.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
a trial court’s ruling to admit or exclude an expert’s testimony for abuse
of discretion.
2. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
3. Rules of Evidence: Expert Witnesses. An expert’s opinion is ordinarily
admissible under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue
2016), if the witness (1) qualifies as an expert, (2) has an opinion that
will assist the trier of fact, (3) states his or her opinion, and (4) is pre-
pared to disclose the basis of that opinion on cross-examination.
4. Trial: Rules of Evidence: Expert Witnesses. When an expert’s opin-
ion on a disputed issue is a conclusion which may be deduced equally
as well by the trier of fact with sufficient evidence on the issue, the
expert’s opinion is superfluous and does not assist the trier in under-
standing the evidence or determining a factual issue.
5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
6. Trial: Evidence: Records: Proof: Appeal and Error. An appellate
court cannot consider an error assigned on the ground that the trial court
excluded evidence unless the record reveals an offer of proof or the offer
was apparent from the context within which questions were asked.
7. Evidence: Appeal and Error. A trial court has the discretion to deter-
mine the relevancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an abuse of
that discretion.
- 318 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
8. Trial: Rules of Evidence: Police Officers and Sheriffs: Evidence:
Extrajudicial Statements. The admissibility of narrative statements
made by law enforcement personnel during an interrogation about the
veracity or credibility of the defendant should be analyzed under the
ordinary rules of evidence; if the defendant’s statement is itself relevant,
then it must be considered whether the law enforcement statement is
relevant to provide context to the defendant’s statement.
9. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
10. Trial: Convictions: Evidence. Where the evidence is cumulative
and there is other competent evidence to support the conviction, the
improper admission or exclusion of evidence is harmless beyond a rea-
sonable doubt.
11. Jury Instructions: Judgments: Appeal and Error. Whether jury
instructions given by a trial court are correct is a question of law. When
dispositive issues on appeal present questions of law, an appellate court
has an obligation to reach an independent conclusion irrespective of the
decision of the court below.
12. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
13. Jury Instructions. The trial court may refuse to give a requested
instruction where the substance of the request is covered in the instruc-
tions given.
14. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
15. Self-Defense. Self-defense is a statutorily affirmative defense in
Nebraska.
- 319 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
16. ____. To successfully assert the claim of self-defense, one must,
inter alia, have a reasonable and good faith belief in the necessity of
using force.
17. Witnesses: Juries: Appeal and Error. The credibility and weight of
witness testimony are for the jury to determine, and witness credibility
is not to be reassessed on appellate review.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Stuart J. Dornan and Mallory N. Hughes, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
A rterburn, Judge.
I. INTRODUCTION
Carl A. Heng was convicted by a jury of manslaughter and
use of a deadly weapon to commit a felony. The district court
subsequently sentenced Heng to a total of 14 to 22 years’
imprisonment. Heng appeals from his convictions here. On
appeal, Heng assigns numerous errors, including that the dis-
trict court erred in excluding certain evidence, in failing to
redact portions of Heng’s statement to police before allowing
the jury to view it, and in refusing to give the jury an instruc-
tion regarding the victim’s character for violence and aggres-
sion. Heng also alleges that there was insufficient evidence to
support both his conviction for manslaughter and his convic-
tion for use of a deadly weapon to commit a felony.
Upon our review, we find no merit to Heng’s assertions on
appeal. Accordingly, we affirm his convictions.
II. BACKGROUND
The State filed an information charging Heng with sec-
ond degree murder pursuant to Neb. Rev. Stat. § 28-304
(Reissue 2016) and with use of a deadly weapon to commit
- 320 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
a felony pursuant to Neb. Rev. Stat. § 28-1205(1)(a) (Reissue
2016). The charges against Heng stem from an incident which
occurred on August 24, 2015. Evidence adduced at trial
revealed that on the night of August 24, Heng got into an
argument with Robert Lane in front of an apartment building
located near 99th and Q Streets in Omaha, Nebraska. During
the argument, Heng pulled a concealed handgun from a hol-
ster on his hip and shot Lane. Immediately after shooting
Lane, Heng called the 911 emergency dispatch service and
provided aid to Lane. Subsequently, Lane died at a hospital.
When Heng spoke with law enforcement, he indicated that
he had shot Lane in self-defense because he feared for his
own life.
Because Heng admitted that he had shot Lane during their
argument, the only disputed issue at trial was whether Heng
was justified in shooting Lane in defense of himself or in
defense of another.
The State presented evidence to demonstrate that Heng was
not justified in shooting Lane. The State called Aubrey Strong
(Aubrey) to testify about her version of the events which imme-
diately preceded the argument between Heng and Lane. Aubrey
was Lane’s girlfriend at the time of the shooting. Lane lived
with Aubrey at the apartments near 99th and Q Streets where
the shooting took place. Aubrey was also friends with Heng.
They had met at their place of employment, and although they
had previously been in a brief romantic relationship, they were
just close friends at the time of the shooting.
Aubrey testified that in the weeks prior to the shooting, Lane
had left her apartment for a period of a 11⁄2 or 2 weeks because
he had “relapsed” and began using marijuana and cocaine
again. Aubrey believed that Lane had checked into some sort
of rehabilitation center. Lane returned to Aubrey’s apartment
only a few days prior to the shooting. While Lane was away,
Aubrey and Heng saw each other often. In fact, they began
spending nights at each other’s apartments.
In the afternoon of August 24, 2015, Aubrey picked up
Lane from work. When she picked him up, Lane was talking
- 321 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
to someone on his cellular telephone. Aubrey testified that
Lane was talking loudly and “aggressive[ly].” When they
arrived at the apartment, Lane indicated that he was going to
go to an “AA meeting” and began to get ready to leave. When
Lane left the bathroom after taking a shower, Aubrey smelled
marijuana and “confronted” Lane about whether he was again
using drugs. Lane got upset and began to yell at Aubrey. He
also knocked over her jewelry box. While Lane was yelling,
Aubrey became scared, ran into the bedroom closet, and shut
and locked the door. While Aubrey was inside the closet, Lane
punched a hole in the closet door. He then left the apartment
and drove away in Aubrey’s car.
After Lane left, Aubrey remained at the apartment, wait-
ing for Lane to return. She testified that Lane returned to
the apartment approximately 11⁄2 to 2 hours later. When Lane
returned, he brought his friend, Brian Steele, with him. At this
time, Lane smelled of alcohol and Aubrey observed a bottle
of alcohol hidden in Lane’s sock. Aubrey and Lane began to
argue again after Lane could not find his wallet. Aubrey testi-
fied that during the argument, Lane pushed her “[t]wo steps
back” against the bedroom door, which “knocked the wind out
of [her],” and she fell to the floor. She testified that she felt
“petrified” due to Lane’s behavior.
After Lane pushed her against the door, Aubrey crawled
from the bedroom into the kitchen to get her keys. She then
left the apartment. Lane followed her into the parking lot of
the apartment building and would not let Aubrey leave. After
unsuccessfully struggling with Lane to get into her car, Aubrey
returned to the apartment where Lane accused Aubrey of cheat-
ing on him. Lane and Steele then left the apartment in Aubrey’s
car. Aubrey could not recall whether she had given them per-
mission to take her car. Aubrey testified that by this point, she
was “the mo[st] scared [she] ha[d] ever been.” She also testi-
fied that prior to August 24, 2015, Lane had never threatened
her or assaulted her.
Aubrey called her younger sister, Emily Strong (Emily),
to tell her what happened. Aubrey did not call the police, but
- 322 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
Emily did suggest that Aubrey call Heng, who lived nearby.
After speaking with Emily, Aubrey sent Heng a text mes-
sage which stated, “‘If I ever send you a blank message,
call the cops.’” Aubrey and Heng then engaged in multiple
conversations via text messaging and telephone calls, during
which Aubrey told Heng that Lane showed up at her apart-
ment intoxicated, punched a hole in her door, and took her
car without her permission. She also lied to Heng and told
him that she had already called the police. Heng eventually
convinced Aubrey to leave the apartment and to meet him at a
nearby gas station. Aubrey testified that she started packing a
few things, but that at some point, she changed her mind and
told Heng not to come meet her because she did not want him
to be “involved.” However, she also testified that she believed
“100 percent” that she needed to leave the apartment for her
own safety.
At some point after her last conversation with Heng, Aubrey
left her apartment building and saw Lane lying on the ground.
She observed Heng performing cardiopulmonary resuscitation
on Lane.
The State also presented the testimony of several witnesses
who contradicted Aubrey’s version of the events of the evening
hours of August 24, 2015. One of Aubrey and Lane’s neigh-
bors testified that on that night, she observed Aubrey and Lane
get into Aubrey’s car at about 6 p.m., which is around the time
that Aubrey testified Lane left for his meeting. The neighbor
testified that Aubrey and Lane did not appear to be fighting
with each other.
The State also offered the testimony of Lane’s friend, Steele,
who was in the apartment while Aubrey and Lane were fight-
ing. Steele testified that at about 6 or 6:30 p.m. on August 24,
2015, Lane picked him up because Lane wanted to talk. As
they were driving, Lane told Steele that he wanted him to meet
his new girlfriend, Aubrey. Lane then drove Steele to Aubrey
and Lane’s apartment. Steele testified that prior to arriving at
the apartment, Lane seemed “all right” and did not appear to
be angry or agitated.
- 323 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
When Lane and Steele arrived at the apartment, Steele
observed there to be some tension between Aubrey and Lane.
Steele testified that Aubrey and Lane were arguing with each
other and that Aubrey began to cry during the argument.
However, he did not observe Lane physically hurt Aubrey.
Steele testified that Aubrey never left the apartment while he
was there. He also testified that he did observe Lane to be hid-
ing a bottle of alcohol, but indicated that Lane did not appear
to be intoxicated.
After being in the apartment for 30 to 45 minutes, Steele
asked if someone could take him home. He testified that
Aubrey threw her keys at him, telling him to get Lane out of
the apartment. On the way back to Steele’s house, Steele told
Lane to go back home, sleep on the couch, and make a “sober”
decision in the morning. In addition, Steele overheard Lane on
the telephone apologizing and saying “‘I love you.’” Steele
assumed Lane was talking to Aubrey.
The State also offered the testimony of a homicide detective
for the Omaha Police Department to contradict Aubrey’s testi-
mony. The detective testified that when she entered Aubrey’s
apartment after the shooting, she observed a hole on the inside
of the bedroom closet door. This testimony clearly contradicts
Aubrey’s testimony that Lane punched the outside of the closet
door while she was locked inside. In addition, the detective
testified that there was no sign of a struggle or a fight in
the apartment.
The State played a recording of Heng’s interview with Det.
Eugene Watson, another homicide detective for the Omaha
Police Department. During this interview, Heng discussed his
version of the events leading up to the shooting and main-
tained that he had shot Lane in self-defense during a physical
struggle. Heng told Detective Watson that prior to August 24,
2015, Aubrey had told him that she was afraid of Lane. She
also told him that Lane had threatened Heng because Lane
believed Aubrey was cheating on him with Heng. In the weeks
leading up to August 24, Aubrey told Heng that she had ended
her relationship with Lane, that she was no longer speaking
- 324 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
to him, and that she had taken him to a rehabilitation center.
Heng believed that by August 24, Lane no longer lived in the
apartment with Aubrey.
On August 24, 2015, Aubrey texted Heng and told him that
Lane had “showed up” at her apartment, had punched a hole
in the door, and had stolen her car. Aubrey also indicated that
Lane was intoxicated. She told Heng that she had already
called the police. Heng told Aubrey to meet him at a nearby
gas station so that she could stay at his apartment. Heng sub-
sequently changed his mind about meeting Aubrey at the gas
station. Instead, he drove to the parking lot of the “clubhouse”
of her apartment complex to wait for her. When he telephoned
Aubrey to tell her where he was, she told him that she had
called an off-duty police officer who lived in her building to
come to her apartment. While Heng was in the parking lot
of the clubhouse and still on the telephone with Aubrey, he
observed Aubrey’s car arrive at the entrance of the apartment
complex. Heng observed Lane driving the car “erratic[ally]
and very fast.” Heng told Aubrey that Lane was back, and
Aubrey “panicked.”
Heng followed Aubrey’s car to the parking lot in front of
her apartment building. He got out of the car and started to
approach the door to meet Aubrey. Instead, he encountered
Lane, who said, “[H]ey, how are you doing?” in a “sarcas-
tic[]” manner. Lane then pushed Heng, and Heng started to
back toward the door of the building while Lane followed
him. Heng “plead[ed]” with Lane not to go inside. Lane then
threatened Heng by saying he would kill him and that he knew
where Heng lived. Lane then “came at” Heng and pushed him
up against the wall of the building, pinning him there with his
entire weight. At this point, Heng was “terrified” and felt he
could not get away from Lane as he was pinned in the corner.
He was afraid that Lane was going to hurt him or kill him. He
was also afraid that if Lane went inside the building, he would
hurt Aubrey. Heng felt “powerless” and believed his only
option was to shoot Lane with the gun he had holstered on
his hip. Heng told Detective Watson that he drew his gun and
- 325 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
fired two or three times from right by his side. He indicated
that when he fired the shots, Lane was still touching him.
After the shots, Lane staggered back and fell. Heng immedi-
ately started to help him and called 911.
Upon further questioning by Detective Watson, Heng admit-
ted that prior to firing the shots, Lane had not hit him and
had not choked him. Lane was holding him by his shoulders
against the apartment wall. However, Heng also indicated that
he did not go to the apartment intending to hurt Lane. He said
he did not want to do that. He explained that he has a valid
permit to carry a concealed gun.
The State presented the testimony of several witnesses who
contradicted Heng’s version of the events of the evening hours
of August 24, 2015. Jacob Epperson, who was a volunteer
firefighter, lived in Aubrey and Lane’s apartment building. On
August 24, between 9:45 and 10 p.m., Epperson left his apart-
ment to retrieve his pager, which was located in his vehicle
parked in front of the apartment building. When Epperson was
in the parking lot, he observed two people arguing near one of
the entrances to the apartment building. He did not think the
argument was “a big deal,” so he returned upstairs to his apart-
ment, using the other entrance. He then went out onto the bal-
cony of his apartment, which overlooked the parking lot. Soon
after, he heard a shot and observed a “muzzle flash.” He saw
Heng moving backward away from the door of the apartment
building and toward the parking lot. Epperson testified that he
observed Heng holding a gun and that his right arm was fully
extended. The shot Epperson observed was fired toward the
entrance area of the apartment building. Later, Epperson told
police that it appeared to him that Heng was about 5 feet away
from Lane when he fired the shot.
Epperson called 911 and then went outside to help Lane.
Epperson began conducting cardiopulmonary resuscitation.
When Epperson was taking care of Lane, Heng repeatedly told
him that he had shot Lane in self-defense. When police arrived,
Epperson identified Heng as the shooter and indicated that
Heng still had a gun.
- 326 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
Epperson’s testimony was contradicted by the testimony of
his live-in girlfriend, who testified that at the time the gun-
shots were fired, Epperson was inside the apartment with her.
Despite this testimony, Epperson indicated that he was positive
he saw the shooting from his balcony.
The State also presented the testimony of two expert wit-
nesses to refute Heng’s version of events. Dr. Michelle Elieff
is the forensic pathologist who performed the autopsy of Lane
after his death. Dr. Elieff testified that Lane had two “major
injuries” at the time of his death: a gunshot wound to his
left torso and a gunshot wound to the right leg. The cause
of Lane’s death was the gunshot wound to his left torso. Dr.
Elieff explained that the bullet entered from Lane’s left side
and had a sideways trajectory. It “lacerat[ed] large blood ves-
sels, the aorta and vena cava, and injur[ed] the liver and blood
vessels to the right kidney.” Dr. Elieff testified that Lane’s
injuries were not consistent with Heng’s story that he had
shot Lane while Lane was “pressed against” him. She testified
that there was no evidence of “close range” gunfire on Lane’s
body. Instead, the evidence revealed that both shots were fired
from an “indeterminate range.” Dr. Elieff explained that an
“indeterminate range” indicates that the shooter was “beyond
several feet away” from Lane at the time the shots were fired,
depending on the type of firearm used. Dr. Elieff also testified
that at the time of his death, Lane had marijuana and alcohol
in his system.
Molly Reil is a forensic technician with the Omaha Police
Department who specializes in firearms and toolmarks exami-
nations. Reil conducted testing to determine how far the end
of the gun was from Lane when he was shot. Reil determined
that the end of the gun was 2 to 5 feet away from Lane when
he was shot in his left torso. She also determined that the end
of the gun was 5 feet or more away from Lane when he was
shot in the right leg. Reil also completed testing to determine
how far the gun was from Heng’s shirt when he fired the
shots. Based on her tests in conjunction with her review of
testing completed by the defense expert, she determined that
- 327 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
the gun was held within 4 to 6 inches of Heng’s shirt when it
was fired. However, another shot could have been fired from
further away.
After the State rested, the defense presented evidence to
prove that Heng acted in self-defense when he shot and killed
Lane. This evidence consisted primarily of expert testimony
concerning the trajectory of the bullets and concerning the dis-
tance between the gun and Lane when the shots were fired and
other witnesses’ opinions about Lane’s character for violence
and aggression and Heng’s character for peacefulness.
Dr. George Nichols is a forensic pathologist who reviewed
the records in this case. Based on his review, he opined that
Lane died “as a result of a close-range gunshot wound to
his abdomen.” Dr. Nichols testified to his belief that Lane
was approximately 24 to 30 inches from the end of the gun
when he was shot. He also indicated that the trajectory of
the bullet from the torso wound was consistent with Lane’s
reaching toward Heng when Lane was shot. However, he also
indicated that the trajectory was consistent with Lane’s hav-
ing his left hand raised to unlock the door of the apartment
building when he was shot. Dr. Nichols testified that the tra-
jectory of the bullet from Lane’s right leg wound was consist­
ent with Heng’s falling to his knees as he was shooting. Dr.
Nichols admitted that he is not a certified firearms examiner
and that he based his opinions on the testing completed by
other experts.
During his testimony, Dr. Nichols also opined that abrasions
on Lane’s hand at the time of his death were consistent with
him having recently punched a door. However, Dr. Nichols
indicated that Lane could have acquired the abrasions another
way. Dr. Nichols opined that red marks on Heng’s neck on the
night of the shooting could have been caused by someone grab-
bing him around the neck. However, again, Dr. Nichols also
admitted that Heng could have acquired the red marks another
way. In fact, he testified that the marks could have been self-
inflicted while Heng was nervously sitting in the police inter-
view room for 6 hours.
- 328 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
Ronnie Freels is a forensic firearms examiner who observed
the tests conducted by Reil. Based on Freels’ interpretation of
these tests, he testified that Lane was approximately 24 to 36
inches from the end of the gun when he was shot in the left
torso. He testified that the gun was not pressed up against
Lane’s body when the shot was fired. Freels opined that the
gun was approximately 4 inches away from Heng’s right
side when he shot. However, Freels indicated that another
shot could have been fired from further away from Heng’s
body. During his testimony, Freels questioned the manner in
which Lane’s clothing had been handled by the Omaha Police
Department. He indicated that too much handling of the cloth-
ing by different people could decrease the amount of gunshot
residue and could affect the results of the tests.
The defense presented evidence to demonstrate that Lane
had a history of violent and aggressive behavior, particu-
larly when he was intoxicated. This evidence revealed that in
October 2013, Lane was taken to the hospital by ambulance
after someone reported he had “overdosed” on alcohol. During
the ride to the hospital, Lane was belligerent and combative.
He had to be held down by three firefighters. When Lane
arrived at the hospital, he continued to be combative. At one
point, Lane kicked a hospital security guard in the shoulder
while the guard was attempting to restrain him so that medical
personnel could help him. He was later convicted of assaulting
the security guard and served 10 days in jail.
In August 2014, police were called to Lane’s father’s home.
Lane’s father told police that Lane had “tackled and assaulted”
him. Lane was “argumentative and disruptive” when police
tried to speak with him. He threatened one police officer. As
a result of this incident, Lane pled guilty to assault and was
sentenced to 30 days in jail.
Other evidence revealed that one of Lane’s previous girl-
friends believed Lane to be a violent person after he acted
very paranoid while under the influence of methamphetamine
and after he would not let her leave her bathroom during an
argument. Emily, Aubrey’s younger sister, testified that she
- 329 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
also believed that Lane was a “violent and aggressive” per-
son. She referred to Lane as “a ticking time bomb.” Emily
had briefly lived with Aubrey and Lane the month prior to the
shooting. While Emily lived with them, she observed Lane
to be “verbally aggressive” toward Aubrey. On one occasion,
Emily and Lane were alone in the apartment. She became
afraid of Lane because he was upset with Aubrey and yelled
at Aubrey over the telephone. Emily indicated that she never
observed Lane to physically hurt Aubrey and that Lane never
physically hurt her.
The defense presented evidence to demonstrate that Heng
had a reputation for being a peaceful person. Heng’s friends
and family testified that Heng had a reputation for being
a peaceful and honest person. These witnesses stated that
“[e]veryone loves [Heng]” and that Heng was “a kind and
even-keeled and quiet person.” These witnesses also testified
that Heng took his handgun with him wherever he went. Other
evidence presented by the defense indicated that Heng had
taken courses to learn to use a handgun and to obtain a permit
to carry a concealed gun.
At the close of the defense’s case, the State called a rebuttal
witness to testify. The rebuttal witness was Lane’s “Alcoholics
Anonymous sponsor” since 2014. He testified that beginning
in 2014, he had met with Lane at least one time per week. He
believed that Lane was generally a peaceful person. However,
he testified that even Lane admitted to having anger issues,
particularly when he was intoxicated. He said that Lane was
“very motivated . . . to change his life,” though. In addition,
Lane was very involved with Alcoholics Anonymous and was
very helpful to other members of the group.
After hearing all of the evidence, the jury convicted Heng
of manslaughter, rather than second degree murder, as the
State charged in the information. The jury also convicted Heng
of use of a weapon to commit a felony. The district court
subsequently sentenced Heng to a total of 14 to 22 years’
imprisonment.
Heng appeals.
- 330 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
III. ASSIGNMENTS OF ERROR
On appeal, Heng assigns and argues five errors, which we
consolidate and renumber for our review. First, Heng argues
that the court erred in excluding expert testimony regarding
Heng’s state of mind at the time of the shooting and erred in
excluding the recording of the 911 call made by Epperson after
the shooting. Second, Heng asserts that the district court erred
in failing to redact portions of Heng’s interview with Detective
Watson prior to showing the interview to the jury. Third, Heng
asserts that the district court erred in failing to provide the
jury with an instruction about Lane’s character for violence.
Finally, Heng asserts that there was insufficient evidence to
support his convictions.
IV. ANALYSIS
1. Exclusion of Evidence
On appeal, Heng challenges certain evidentiary decisions
made by the district court. Specifically, he challenges the
court’s decision to exclude the testimony of a psychologist who
evaluated Heng after the shootings and the court’s decision to
exclude a recording of the 911 call Epperson made immedi-
ately after the shooting. We address each of Heng’s assertions
separately below.
(a) Psychologist’s Opinion
Prior to trial, defense counsel indicated an intention to
call Kirk Newring, Ph.D., as a witness. Dr. Newring is a
licensed psychologist who conducted a psychological inter-
view of Heng and who completed research on the topic of how
individuals respond when presented with extremely stressful,
life-­threatening situations. The defense intended Dr. Newring
to testify to the following conclusions:
[D]uring the interval of approximately 9:45p.m. - 9:57p.m.
Monday August 24, 2015
(1) . . . Heng was not suffering from a mental disease
or defect; nor was he under the influence of any prescrip-
tion or non-prescription medication or substance;
- 331 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
(2) . . . Heng believed that deadly force was necessary
for the purpose of protecting himself against the use of
unlawful force being inflicted upon him by . . . Lane;
(3) . . . Heng believed that deadly force was immedi-
ately necessary to protect himself against death or serious
bodily harm;
(4) . . . Heng believed that . . . Lane initiated an unlaw-
ful physical assault against . . . Heng;
(5) . . . Heng believed . . . Lane’s threat of “I’ll kill
you. I know where you live.”
(6) . . . Heng could not appreciate, perceive, or access
any means of safe escape or retreat;
(7) . . . Heng believed that . . . Lane’s threat to kill . . .
Heng and . . . Lane’s physical assault and confining of . . .
Heng was unlawful.
However, defense counsel indicated that Dr. Newring would
not testify whether Heng’s actions on the night of August 24,
2015, were reasonable.
The State filed a motion in limine asking that Dr. Newring’s
testimony be excluded from trial. Specifically, the State argued
that Dr. Newring did not qualify as an expert witness, that his
testimony was not relevant, and that his testimony would
not assist the trier of fact in any way. Essentially, the State
asserted that Dr. Newring’s opinion concerning Heng’s state
of mind at the time of the shooting should not be admitted
because such a finding of fact “should be left to the province
of the jury.” A pretrial hearing was held on the State’s motion
in limine.
For purposes of the motion in limine, Dr. Newring’s report
was received into evidence. The parties agreed that if allowed
to testify, Dr. Newring would testify to “exactly” what was
contained in his report. The report has essentially five sections.
First, Dr. Newring briefly describes his professional education,
background, and current areas of practice. A more complete
recitation of this information is contained in Dr. Newring’s
curriculum vitae, which was also admitted at the hearing.
Second, he recounts the records and documents he reviewed
- 332 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
pertinent to this case along with reporting that he conducted a
psychological evaluation of Heng. Third, he basically describes
his own “findings of fact” as to what he believes happened
before and during the encounter between Heng and Lane.
Fourth, he sets forth a review of literature in the “field of
threat assessment” and “the appraisal of risk in interpersonal
conflict.” This includes literature on the effect of stress and
anxiety and its impact on cognitive processes. Finally, he states
his seven conclusions as recounted above.
After the hearing, the district court entered an order sustain-
ing the State’s motion in limine and precluding Dr. Newring
from testifying at trial. The court stated:
[Dr. Newring’s] expert opinions shall be excluded
because they are merely being offered as nothing more
than an expression of how the trier of fact should decide
this case and that the expert’s opinions being set forth,
which obviously are disputed material issues in [Heng’s]
defense, are conclusions which may be deduced equally
as well by a trier of fact with sufficient evidence on
the issue. The Court finds these expert opinions to be
superfluous and would not assist the triers of fact in this
matter in understanding the evidence or determining a
factual issue.
The Court notes that the first finding of Dr. Newring is
that there are no factual allegations of any mental disease
or defect that [Heng] was suffering at the relevant time.
Without at least some finding of this, the Court clearly
finds that these opinions would be merely offered for
bolstering of [Heng’s] testimony.
Although [Heng] argues that they would not be offer-
ing these opinions for determination of reasonableness of
[his] actions, they clearly are offering these opinions per-
taining to what [he] may or may not have believed at the
moment of the occurrence of the events that brought about
this case. What [Heng] reasonably believed is clearly
a material element of the defense of self-defense. That
clearly is a determination to be made by the fact finder.
- 333 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
There being no unique mental illness or defect of [Heng]
that exists, the Court does not find that Dr. Newring’s
opinion would in any way assist the Jury in understanding
the evidence in this case.
Defense counsel renewed his motion to have Dr. Newring
testify, which renewal occurred on the eve of trial after the
district court decided to admit into evidence the entirety of
Heng’s interview with Detective Watson. The court denied
counsel’s request.
On appeal, Heng asserts that the district court erred in
not allowing Dr. Newring to testify. Specifically, he alleges
that because Dr. Newring was not allowed to testify, he was
“denied . . . his Sixth Amendment Constitutional right to pre­
sent a defense under the compulsory clause.” Brief for appel-
lant at 32. He also alleges that the district court incorrectly
applied the rules of evidence in prohibiting Dr. Newring’s
testimony. Heng alleges that the court’s exclusion of the tes-
timony was particularly egregious in light of the statements
made by Detective Watson during his interview with Heng.
Upon our review, we conclude that Heng’s assertions do not
have merit.
(i) Standard of Review
[1] An appellate court reviews a trial court’s ruling to admit
or exclude an expert’s testimony for abuse of discretion. State
v. Braesch, 292 Neb. 930, 874 N.W.2d 874 (2016).
(ii) Analysis
[2] Initially, we note that Heng failed to raise his consti-
tutional argument to the district court. Instead, Heng argued
only that Dr. Newring’s testimony was admissible pursuant
to the relevant rules of evidence. Accordingly, we do not
address Heng’s constitutional claims in this appeal. When an
issue is raised for the first time in an appellate court, it will
be disregarded inasmuch as a lower court cannot commit error
in resolving an issue never presented and submitted to it for
disposition. State v. Thompson, 278 Neb. 320, 770 N.W.2d
598 (2009).
- 334 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
[3] Heng’s assertion that the district court erred in exclud-
ing Dr. Newring’s testimony based on the relevant rules of
evidence is without merit. An expert’s opinion is ordinarily
admissible under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702
(Reissue 2016), if the witness (1) qualifies as an expert, (2)
has an opinion that will assist the trier of fact, (3) states his
or her opinion, and (4) is prepared to disclose the basis of
that opinion on cross-examination. State v. Mason, 271 Neb.
16, 709 N.W.2d 638 (2006). In our reading of the State’s brief
on appeal, it does not appear that the State is challenging Dr.
Newring’s qualifications to testify as an expert witness. Rather,
it appears that both Heng and the State focus their arguments
about the admissibility of Dr. Newring’s testimony on whether
such testimony would have assisted the jury. In addition, we
note that in its order sustaining the State’s motion in limine,
the district court indicated that it based its decision to exclude
Dr. Newring’s testimony on its conclusion that the testimony
“would not be . . . helpful to the jury.”
[4] If a witness is qualified as an expert pursuant to rule
702, a court considering admissibility of the expert’s testi-
mony, which may include an opinion, must decide whether the
testimony is likely to assist the trier of fact to understand the
evidence or determine a factual issue. State v. Reynolds, 235
Neb. 662, 457 N.W.2d 405 (1990). The Nebraska Supreme
Court has previously held that when an expert’s opinion on a
disputed issue is a conclusion which may be deduced equally
as well by the trier of fact with sufficient evidence on the
issue, the expert’s opinion is superfluous and does not assist
the trier in understanding the evidence or determining a factual
issue. Id.
In this case, if permitted, Dr. Newring would have testi-
fied that Heng did not suffer from a mental disease or defect,
nor was he under the influence of any drugs or alcohol at the
time of the shooting. In addition, Dr. Newring would have
testified that considering all of the circumstances of the night
of August 24, 2015, he believed that Heng shot Lane due to
an imminent fear for his own safety. Given our review of the
- 335 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
record, we do not find that the court abused its discretion in
excluding Dr. Newring’s testimony.
In Dr. Newring’s report, he fails to explain how the lit-
erature he reviewed and cited supports his conclusions as to
what Heng believed. Our review of the report reveals that the
connection between the research and the facts of this case is
tenuous. Moreover, summarized, the literature confirms only
what would seem to be commonly known: when people are
placed under stressful circumstances, such as a shoot/no shoot
scenario, their decisions may be affected by a number of vari-
ables, including, but not limited to, the nature of the appreci-
ated threat, anxiety, gender, and exertion needed to respond
to the situation. There is little in Dr. Newring’s report which
specifically relates these factors to Heng.
Dr. Newring’s testimony would not have assisted the jury
in evaluating the circumstances surrounding Lane’s death and
deciding whether Heng reasonably feared for his life when
he shot and killed Lane and thus acted in self-defense. As Dr.
Newring, himself, indicated, Heng did not suffer from any
mental disease or defect, the effects of which would need to
be explained to a jury. Based on our understanding of Dr.
Newring’s proposed testimony, such testimony would amount
to nothing more than a statement by a psychologist that he
believed Heng’s version of events. Such testimony appears to
be relevant only to bolster Heng’s credibility. This is not per-
missible. We affirm the decision of the district court to exclude
Dr. Newring’s testimony.
We note that in Heng’s brief on appeal, he asserts that
the court’s decision to exclude Dr. Newring’s testimony
should have been reevaluated in light of the admission of the
entirety of his interview with Detective Watson and Detective
Watson’s statements therein about the law of self-defense.
We find Heng’s assertion in this regard to be without merit.
Principally, the statements made by Detective Watson in the
interview do not constitute testimony. Moreover, the court
instructed the jury not to consider Detective Watson’s state-
ments “regarding self-defense, defense of another[,] or guilt
- 336 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
or innocence” for any purpose other than context for Heng’s
responses. We will further discuss Heng’s interview with
Detective Watson later in our analysis.
(b) Epperson’s 911 Call
During defense counsel’s cross-examination of Epperson,
counsel offered into evidence a recording of the telephone
call Epperson initiated to 911 immediately after the shoot-
ing. The State objected to the admission of this recording on
the basis that it was hearsay. Defense counsel argued that the
contents of the recording were not hearsay because the state-
ments made by Epperson were excited utterances made close in
time to a “startling event” and because the statements relayed
Epperson’s state of mind at the time of the events. A recess was
taken, and the recording was played for the trial judge outside
the presence of the jury. After hearing the recording, the court
sustained the State’s objection and did not allow the jury to
hear the 911 call.
On appeal, Heng argues that the district court erred in
not admitting the recording of the 911 call into evidence.
Specifically, he argues that the court’s failure to admit the
recording into evidence violated both his constitutional right
to confront the witnesses who testified against him and the
relevant rules of evidence. We find Heng’s assertions to be
without merit.
(i) Standard of Review
[5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57
(2008). When judicial discretion is not a factor in assessing
admissibility, whether the underlying facts satisfy the legal
rules governing the admissibility of such evidence is a ques-
tion of law, subject to de novo review. See id. But where the
Nebraska Evidence Rules commit the evidentiary question at
- 337 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
issue to the discretion of the trial court, we review the admis-
sibility of evidence for an abuse of discretion. Id.
(ii) Analysis
Again, we note that Heng failed to raise his constitutional
argument to the district court. Instead, Heng argued only that
the recording should be admissible pursuant to the relevant
rules of evidence. Accordingly, we do not address Heng’s con-
stitutional claims in this appeal. As we stated above, when an
issue is raised for the first time in an appellate court, it will
be disregarded inasmuch as a lower court cannot commit error
in resolving an issue never presented and submitted to it for
disposition. See State v. Thompson, 278 Neb. 320, 770 N.W.2d
598 (2009).
[6] In addition, we conclude that we are unable to address
the merits of Heng’s assertion that the district court erred in
failing to admit the recording based on the rules of evidence.
Although defense counsel played the recording for the district
court, after the court sustained the State’s objection, counsel
failed to make an offer of proof in order to include in our
record either the recording itself or a transcript of the record-
ing. An appellate court cannot consider an error assigned on
the ground that the trial court excluded evidence unless the
record reveals an offer of proof or the offer was apparent
from the context within which questions were asked. See State
v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008). Here,
defense counsel did not make an offer of proof at trial and
therefore the issue of the admissibility of the recording is not
preserved for appellate review. Without knowing the specific
contents of the complete recording, including the exact lan-
guage used by Epperson or the tone of his voice, we simply
cannot say whether the district court erred in sustaining the
State’s objection.
However, we also find that even if the district court did
err in excluding the recording of Epperson’s 911 call, such
error was harmless. On appeal, Heng argues that the 911
call was necessary to impeach Epperson’s trial testimony
- 338 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
that he had seen Heng shoot Lane. During defense counsel’s
cross-­examination of Epperson, counsel effectively impeached
him using excerpts from the 911 call. Counsel questioned
Epperson about what he said during his 911 call and how what
he said then was different than what he testified to at trial.
Specifically, upon questioning by defense counsel, Epperson
admitted that during the course of the 911 call, he twice asked
Heng where the shooter was, even though at trial he testified
that he already knew who the shooter was because he saw
Heng shoot Lane. Epperson also admitted that he did not tell
the 911 operator that he saw the shooting, only that shots had
been fired at his apartment building. In addition, defense coun-
sel further impeached Epperson’s testimony using portions of
the statements he gave to police and using the testimony of his
live-in girlfriend, who specifically testified that Epperson did
not see the shooting.
Heng’s assertions that the district court erred in sustaining
the State’s objection to the recording of Epperson’s 911 call
are without merit.
2. Failure to R edact Heng’s Interview
With Detective Watson
Prior to trial, defense counsel filed a motion in limine asking
the court to exclude certain portions of the recording of Heng’s
interview with Detective Watson prior to showing that inter-
view to the jury. Specifically, counsel requested that the court
redact from the recording narratives made by Detective Watson
regarding “his interpretation of the law of self-defense.” In
support of the motion, counsel submitted to the district court
a redacted copy of the transcript of the interview. This tran-
script includes 13 separate redactions of statements made by
Detective Watson. Each of these redactions occur toward the
end of the interview after Heng described his version of the
events surrounding the shooting. While we do not recount each
separate redaction here, we do provide two examples of the
redacted language which are representative of the theme of the
statements in question.
- 339 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
At one point during the interview, Heng reiterates that he
felt justified in using deadly force against Lane because Lane
threatened to kill him. Detective Watson responds as follows:
He threatened to kill you. I get threatened all the time . . .
by people that are very capable of killing me. I can’t just
gun them down. If they produce a gun, if they produce a
weapon, then that gives you ground to use deadly force.
You didn’t tell me any of this. Witnesses are not seeing
any of this. Witnesses have you with your arm extended,
firing two shots, backing away from him. How is that
a threat? . . . [Y]ou can’t scare yourself into shooting
people. And like I said, if that’s your mindset, you should
have never been carrying a gun on your hip.
Later, Detective Watson stated:
You can’t feel fear and use deadly force. You can’t imag-
ine what would happen to you, or someone else, and use
deadly force. You have to either see it, and respon[d] to it.
Hey, get off of her. Hey, get your hands from around her
neck. If you don’t stop choking her, I’m going to shoot
you. [Lane], get your hands off of me. Don’t do that. If
you don’t back away from me, I’m going to shoot you.
If you don’t get your hands from my neck, I’m going to
shoot you. If you don’t stop beating me, like I’m some
. . . rag doll, I’m going to shoot you. You understand what
I’m saying?
The State objected to the defense’s motion in limine. The
State argued that Detective Watson’s statements concern-
ing the law surrounding the use of force and self-defense
were merely an interview technique used to elicit further
information from Heng. The State indicated that Detective
Watson’s statements were relevant to show the context of the
entire interview.
Ultimately, the district court denied the motion in limine and
allowed the entire interview to be played for the jury. However,
during defense counsel’s cross-examination of Detective
Watson, counsel asked him about his opinions concerning the
use of force and self-defense:
- 340 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
[Defense counsel:] And you were trying to get . . .
Heng to agree with your theory, which was that you
believed the other witnesses and not him, for the last ten
minutes of that interview?
[Detective Watson:] Yes.
[Defense counsel:] As an investigator, you’re supposed
to develop facts and record facts; right?
[Detective Watson:] That is correct.
[Defense counsel:] Your opinion doesn’t mean squat,
does it?
[Detective Watson:] My opinion does not mean
anything.
[Defense counsel:] None at all?
[Detective Watson:] None at all.
In addition, the district court instructed the jury about Detective
Watson’s statements during the interview. Jury instruction No.
18 stated:
During the course of the trial, the State offered into
evidence the video recording of [Heng’s] statement to
Detective Watson. The officer’s statements, opinions
or assertions are offered solely to provide context to
[Heng’s] relevant responses. His comments and state-
ments as to the law regarding self-defense, defense of
another[,] or guilt or innocence are not to be considered
by you. Only [Heng’s] responses should be considered as
evidence. In applying the law to this case, you must rely
on these Instructions alone.
On appeal, Heng asserts that the district court erred in fail-
ing to redact from the recording of Heng’s interview Detective
Watson’s narratives about use of force and self-defense.
Specifically, Heng asserts that the failure to redact the inter-
view was error because Detective Watson’s statements were
inadmissible hearsay which is precluded by the Confrontation
Clause of the U.S. Constitution, because permitting Detective
Watson to testify as an expert witness without first qualify-
ing him as an expert violated his right to due process, and
- 341 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
because failure to redact Detective Watson’s statements vio-
lated certain evidentiary rules.
(a) Standard of Review
[7] A trial court has the discretion to determine the rele­
vancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. State v. Rocha, 295 Neb. 716, 890 N.W.2d
178 (2017).
(b) Analysis
Heng failed to raise his constitutional arguments to the
district court. At trial, he did not argue that the admission of
the entirety of the interview violated the Confrontation Clause
of the U.S. Constitution or violated his right to due process.
Instead, as we discussed above, Heng argued only that portions
of the recording should be inadmissible pursuant to the relevant
rules of evidence. Accordingly, we do not address Heng’s con-
stitutional claims in this appeal. As we stated in our analysis
above, when an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. See State v. Thompson, 278 Neb. 320,
770 N.W.2d 598 (2009).
Heng asserts that the statements made by Detective Watson
about the law of self-defense and use of force should have
been redacted from Heng’s interview with Detective Watson
because the statements were not relevant and, essentially,
permitted Detective Watson to tell the jury his opinion about
whether Heng was acting in self-defense.
[8] Recently, the Supreme Court addressed the admissibil-
ity of recorded interviews which include narrative statements
by law enforcement personnel about the veracity or cred-
ibility of the defendant. In State v. Rocha, supra, the court
held that the admissibility of narrative statements made by
law enforcement personnel during an interrogation about the
veracity or credibility of the defendant should be analyzed
- 342 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
under the ordinary rules of evidence; if the defendant’s state-
ment is itself relevant, then we must consider whether the law
enforcement statement is relevant to provide context to the
defendant’s statement. The court also stated, “To do this, we
consider whether the defendant’s statement would be any less
probative in the absence of the law enforcement statement. If
the law enforcement statement does not make the defendant’s
statement any more probative, it is not relevant.” Id. at 741,
890 N.W.2d at 199.
We recognize that there is clearly a distinction between the
facts of State v. Rocha, supra, and the facts of this case. In
State v. Rocha, supra, the statements at issue related to whether
the defendant was telling the truth during the interview. In
this case, the statements at issue relate to whether Detective
Watson believed that Heng had acted in self-defense given his
version of the events surrounding the shooting. Essentially, the
statements concern Detective Watson’s interpretation of the
law of self-defense and his opinion about whether Heng was
legally justified in shooting Lane. Despite this distinction, we
find that the analysis laid out in State v. Rocha, supra, is appli-
cable here. Given this finding, we analyze first whether Heng’s
statements in response to Detective Watson’s statements were
relevant and second whether Detective Watson’s statements
make Heng’s statements any more probative.
We have reviewed Heng’s interview with Detective Watson
in its entirety. We find that Heng’s statements in response to
Detective Watson’s narratives about the law of self-defense and
use of force are relevant to a determination of whether Heng
was justified in shooting Lane. Upon Detective Watson’s ques-
tioning, Heng further describes why he was in fear of Lane at
the time of the shooting. He also gives some indication that the
events surrounding the shooting happened so fast that he does
not necessarily have a clear memory of every detail. In addi-
tion, we note that during Detective Watson’s questioning, the
manner in which Heng answered questions appeared to change.
This change in demeanor is also relevant to a determination of
Heng’s credibility during the interview.
- 343 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
We also find that, with one exception, Detective Watson’s
statements to Heng about the law of self-defense and use of
force were relevant to provide context to Heng’s statements
and admissions. If Detective Watson’s statements were redacted
from the interview, Heng’s statements could be misinterpreted
and Heng’s change in demeanor as a result of those state-
ments could be misconstrued. For the most part, we find that
Detective Watson’s statements about the law of self-defense
and use of force constituted an interview technique which was
meant to elicit further conversation with Heng.
Additionally, we find that Detective Watson’s statements
were adequately tempered by the court’s explicit instructions
to the jury that it was not to consider Detective Watson’s
statements except to provide context to Heng’s statements.
Specifically, as we stated above, jury instruction No. 18
instructed the jury to consider only Heng’s responses to
Detective Watson’s statements as evidence. The instruction
also stated that members of the jury were not to consider
Detective Watson’s statements, opinions, or assertions for any-
thing other than to provide context to Heng’s statements. In
addition, as a part of the jury instructions, in jury instruction
No. 8, the court specifically informed the jury of the elements
that must be proved to establish a claim of self-defense. We
note that Detective Watson, himself, told the jury during cross-
examination that his statements about the law of self-defense
and use of force were only his opinion, which “does not mean
anything.” Finally, we note that during a sidebar discussion
just prior to the playing of the interview for the jury, Heng’s
counsel inquired whether the court would give a limiting
instruction concerning the interview at the close of the evi-
dence as part of the jury instructions. Counsel did not request
that a limiting instruction be given prior to the playing of the
interview. The court did note the agreement of the parties that
the jury would be advised that the recording would not be pro-
vided to them during deliberations.
We do find that the court erred in failing to redact one state-
ment made by Detective Watson during the interview. This
- 344 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
lengthy narrative comes at the end of the interview and states
as follows:
But you cannot scare yourself into using deadly force.
There has to be an actual threat. There has to be an
attack in progress. He has to be actively punching you,
almost to a bloody pulp. Even then are you still justified
in using deadly force? I don’t know. I can’t answer that.
But I can tell you other people that’s been in your situ-
ation that use deadly force, it’s not something that they
thought was going to happen. It’s oh my God, He got a
knife. It’s oh my God, he got a gun. Oh my God, he’s
swinging that knife at me. Oh my God, he’s choking . . .
me, I can’t breathe, I feel as though I’m going to pass
out. Oh my God, if I get punched one more time by this
guy, I think I might get knocked out. What will happen
to me if he knocks me out? I don’t see any swollen lips,
I don’t see a bloody nose, I don’t see swollen, I don’t see
a severely broken wrist bone, leg on your person. You
can[’t] think someone’s a bad ass, to shoot them. You
can’t feel as though someone’s going to do something
to you and be justified shooting them. It’s a different
story if you would have showed up there and his hands
were wrapped around Aubrey’s neck, her eyes are rolled
back into the back of her head, she’s gasping for air.
Then . . . .
After this narrative, Heng does not respond and the interview
concludes. Because this lengthy statement by Detective Watson
does not elicit any further information from Heng, we find
that it should have been redacted from the interview prior to
it being shown to the jury. This statement does not have any
relevance to Heng’s guilt or innocence. The district court erred
in failing to redact the statement.
[9,10] However, we conclude that the district court’s fail-
ure to redact this final statement by Detective Watson was
harmless. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error, a guilty
- 345 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
verdict would surely have been rendered, but whether the
actual guilty verdict rendered was surely unattributable to the
error. State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
Where the evidence is cumulative and there is other competent
evidence to support the conviction, the improper admission or
exclusion of evidence is harmless beyond a reasonable doubt.
Id. Detective Watson’s concluding statements were a repeti-
tion of his previous statements to Heng about the law of self-
defense and use of force. In light of Detective Watson’s prior
statements in the interview which we found to be admissible
to provide context, the jury’s guilty verdict was surely unat-
tributable to Detective Watson’s concluding remarks. This is
especially true given the explicit instruction to the jury admon-
ishing them not to consider Detective Watson’s statements for
any purpose other than as context to Heng’s responses.
In its brief to this court, the State acknowledges that given
the nature of Detective Watson’s comments during his inter-
view with Heng, this issue is a “close[] call.” Brief for appel-
lee at 24. We agree with the State’s assessment. Detective
Watson’s explanations in both tone and content come danger-
ously close to being unfairly prejudicial. However, Heng’s
responses were relevant and the context to these responses
was also relevant. Given the specific instructions provided
by the district court, combined with Detective Watson’s own
testimony on cross-examination regarding the lack of value
of his opinion, we cannot find that unfair prejudice occurred.
Under our deferential standard of review, we do not find
that the district court abused its discretion in failing to
redact Detective Watson’s comments from the recording of
the interview.
We conclude that, with one exception, the district court did
not abuse its discretion when it admitted into evidence the
entirety of Detective Watson’s interview with Heng. In addi-
tion, we find that the court’s error in failing to redact the final
statement of Detective Watson was harmless. Accordingly,
Heng’s assertions about the admission of the interview are
without merit.
- 346 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
3. Jury Instruction
Heng requested that the district court include an instruction
on Lane’s character for violence and aggression. Heng’s pro-
posed instruction read in relevant part as follows:
Evidence of the victim’s character for violence, assault­
ive behavior and aggression has been offered to help
you decide whether the defendant acted in self-defense
or defense of another, as set forth in Instruction Nos. 7,
Section 2. You may consider this evidence along with all
the other evidence in making your decision.
The State objected to the proposed instruction. At the jury
instruction conference, the district court indicated its refusal to
include this proposed instruction in the jury instructions.
On appeal, Heng asserts that the district court erred in refus-
ing his proposed jury instruction about Lane’s character for
violence and aggression. He argues that failure to instruct the
jury in this regard “resulted in a miscarriage of justice.” Brief
for appellant at 48. We disagree with Heng’s assertion.
(a) Standard of Review
[11] Whether jury instructions given by a trial court are cor-
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the deci-
sion of the court below. State v. McCurry, 296 Neb. 40, 891
N.W.2d 663 (2017).
(b) Analysis
[12] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. Id. We determine that
based on the evidence in this case, the instructions given by
the court were adequate and Heng was not prejudiced by the
court’s refusal to give his proposed instruction.
- 347 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
In his brief on appeal, Heng alleges that his proposed
instruction should have been included in the jury instruc-
tions based on the language of a pattern jury instruction.
Specifically, Heng indicates that NJI2d Crim. 5.5 provides that
a court should instruct a jury concerning evidence presented
about a particular character trait of a victim, in this case about
the victim’s character for violence and aggression. However,
NJI2d Crim. 5.5 does not discuss the victim’s character at all.
Instead, that pattern jury instruction relates only to evidence
of a particular character trait of the defendant. In addition,
Heng cites to this court’s decision in State v. Lewchuk, 4
Neb. Ct. App. 165, 539 N.W.2d 847 (1995), to support his argu-
ment about the proposed instruction. We agree that State v.
Lewchuk, supra, does address the admissibility of evidence
concerning a victim’s character for violence and aggression
in a self-defense case. We held therein that the district court
committed prejudicial error by excluding admissible testimony
regarding specific instances of prior violent conduct by the
victim. However, our opinion in State v. Lewchuk, supra, does
not address whether a specific jury instruction regarding such
evidence should be given. In fact, it does not address jury
instructions at all. Accordingly, Heng has failed to provide us
with any legal basis which would have required the district
court to give the proposed jury instruction.
[13] Moreover, our reading of the jury instructions which
were actually provided to the jury reveals that the jury was
adequately informed by other instructions that it should con-
sider the evidence presented about Lane’s character for vio-
lence and aggression in its determination about whether Heng
acted in self-defense. As such, Heng’s proposed instruction
would have been superfluous. The trial court may refuse to
give a requested instruction where the substance of the request
is covered in the instructions given. State v. Samuels, 205 Neb.
585, 289 N.W.2d 183 (1980).
Jury instruction No. 7 informed the jury that it should
consider whether Heng acted in self-defense when he shot
and killed Lane. The instruction informed the jury that in
- 348 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
considering Heng’s self-defense claim, it should determine,
among other things, whether Lane “attempted to cause or
threatened to cause death or serious bodily harm to [Heng]”
and whether Heng “reasonably believed that his use of deadly
force was immediately necessary to protect himself against
any such force used by . . . Lane.” In addition, jury instruction
No. 13 instructed the jury to consider “[t]he testimony of the
witnesses” in coming to its ultimate decision. This testimony
would include the substantial amount of testimony produced
by the defense regarding Lane’s character as it relates to
violence and aggression. These instructions, taken together,
and in conjunction with the remaining instructions, instructed
the jury to consider all of the witness testimony in deciding
whether Heng acted in self-defense when he shot Lane. Heng’s
proposed instruction highlighting Lane’s history was not neces-
sary. As a result, the district court’s failure to give the proposed
instruction did not result in any prejudice to Heng.
4. Sufficiency of Evidence
Heng alleges that the evidence presented at trial sufficiently
established his claim of self-defense and that there was insuf-
ficient evidence to support a finding that he did not act in
self-defense. Upon our review, we conclude that the evidence
presented at trial was sufficient to support Heng’s convictions
and, thus, was sufficient to disprove Heng’s claim of self-
defense. Accordingly, we affirm.
(a) Standard of Review
[14] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency of the evidence, or failure to prove a prima facie case,
the standard is the same: In reviewing a criminal conviction,
an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence
- 349 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction. State v. France,
279 Neb. 49, 776 N.W.2d 510 (2009).
(b) Analysis
[15,16] Self-defense is a statutorily affirmative defense
in Nebraska. Id. Neb. Rev. Stat. § 28-1409 (Reissue 2016)
provides:
(1) . . . [T]he use of force upon or toward another per-
son is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
....
(4) The use of deadly force shall not be justifiable
under this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily harm, kidnapping or sexual intercourse compelled
by force or threat, nor is it justifiable if:
....
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting
a claim of right thereto or by complying with a demand
that he abstain from any action which he has no duty
to take[.]
The Nebraska Supreme Court has previously held that to suc-
cessfully assert the claim of self-defense, one must, inter alia,
have a reasonable and good faith belief in the necessity of
using force. State v. France, supra. See State v. Iromuanya, 272
Neb. 178, 719 N.W.2d 263 (2006).
Heng had the initial burden of going forward with evidence
of self-defense; after he did so, the State had the burden to
prove that he did not act in self-defense. See State v. France,
supra. The recording of Heng’s interview with Detective
Watson was played for the jury during the trial. In this inter-
view, Heng stated that he acted in self-defense when he shot
- 350 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
Lane. Heng described that he fired his gun while Lane had his
entire weight pressed against him and was holding him against
the exterior wall of the apartment building. In addition, Heng
stated that he believed he had no choice but to shoot Lane and
that he believed Lane might seriously hurt or kill him if he
did not immediately shoot. However, other evidence presented
at the trial contradicted Heng’s claim of self-defense. Such
evidence included the testimony of Epperson, who testified
that he saw from the balcony of his apartment Heng shoot
Lane. He told police that when Heng fired at Lane, Heng was
approximately 5 feet away from Lane and was backing up
toward the parking lot of the apartment building. Epperson’s
testimony, if believed by the jury, suggests that Heng was not
in imminent danger when he fired at Lane and further suggests
that Heng could have safely retreated from the situation with-
out firing his gun.
Other evidence presented at trial supports Epperson’s testi-
mony. Both the State’s expert, Reil, and the defense’s expert,
Freels, testified that when Heng shot Lane in the left torso, the
end of the gun was at least 2 to 3 feet from Lane. Reil opined
that the end of the gun could have been as much as 5 feet away
from Lane at that time. Both experts agreed that Heng’s claim
that Lane was pushed up against him at the time he fired his
gun was not supported by the physical evidence. In addition,
Dr. Elieff testified that there was no evidence of “close range”
gunfire when she examined Lane’s injuries. She opined that
Lane was shot from “beyond several feet away.”
Portions of Heng’s interview with Detective Watson also
contradict his claim of self-defense. Heng specifically indi-
cated to Detective Watson that prior to Heng’s firing his gun,
Lane had not hit him or choked him. These admissions call into
question the reasonableness of Heng’s use of deadly force.
Based on the evidence presented at trial, the jury could have
concluded that Heng’s use of deadly force against Lane was
not reasonable given the circumstances surrounding the shoot-
ing. As such, the jury could have found that Heng did not act
in self-defense when he shot and killed Lane.
- 351 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HENG
Cite as 25 Neb. Ct. App. 317
[17] The credibility and weight of witness testimony are
for the jury to determine, and witness credibility is not to
be reassessed on appellate review. State v. France, 279 Neb.
49, 776 N.W.2d 510 (2009). Any conflicts in the evidence or
questions concerning the credibility of witnesses are for the
finder of fact to resolve. Id. Because it found Heng guilty of
manslaughter and use of a deadly weapon to commit a felony,
the jury apparently disbelieved Heng’s assertion that he acted
in self-defense. Further, as we stated above, there was suffi-
cient evidence presented to support a finding that Heng did not
act in self-defense, and we will not reassess the jury’s finding
on appeal.
V. CONCLUSION
Upon our review, we affirm Heng’s convictions for man-
slaughter and use of a weapon to commit a felony. We find
there was sufficient evidence to support the jury’s conclusion
that Heng did not act in self-defense when he shot and killed
Lane. We also find that Heng’s assertions of error on appeal
are without merit.
A ffirmed.