State v. Jackson , 923 N.W.2d 97 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    01/08/2019 08:12 AM CST
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    STATE v. JACKSON
    Cite as 
    26 Neb. App. 727
    State of Nebraska, appellee, v.
    Jahhme D. Jackson, appellant.
    ___ N.W.2d ___
    Filed January 8, 2019.    No. A-17-1154.
    1.	 Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    2.	 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.
    3.	 Rules of Evidence: Appeal and Error. Where 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.
    4.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    5.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    6.	 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
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    STATE v. JACKSON
    Cite as 
    26 Neb. App. 727
    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the instruction.
    7.	 Self-Defense. To successfully assert the claim of self-defense, a defend­
    ant must have a reasonable and good faith belief in the necessity of
    using force and the force used in defense must be immediately necessary
    and justified under the circumstances.
    8.	 Self-Defense: Proof. The defendant bears the initial burden to produce
    evidence which supports a claim of self-defense.
    9.	 Self-Defense. Only unlawful force directed at a defendant provides a
    justifiable basis for self-defense.
    10.	 Sentences: Appeal and Error. An appellate court will not disturb sen-
    tences that are within statutory limits, unless the district court abused its
    discretion in establishing the sentence.
    11.	 ____: ____. Where a sentence imposed within the statutory limits is
    alleged on appeal to be excessive, the appellate court must determine
    whether the sentencing court abused its discretion in considering and
    applying the following factors: the defendant’s age, mentality, education,
    experience, and social and cultural background, as well as his past crim-
    inal record or law-abiding conduct, motivation for the offense, nature of
    the offense, and the amount of violence involved in the commission of
    the crime.
    12.	 ____: ____. An abuse of discretion takes place when the sentencing
    court’s reasons or rulings are clearly untenable and unfairly deprive a
    litigant of a substantial right and a just result.
    Appeal from the District Court for Lancaster County: Darla
    S. Ideus, Judge. Affirmed.
    Joe Nigro, Lancaster County Public Defender, and Yohance
    Christie for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Pirtle, Bishop, and A rterburn, Judges.
    Pirtle, Judge.
    INTRODUCTION
    Jahhme D. Jackson appeals his conviction and sentence for
    assault in the second degree in the district court for Lancaster
    County. He argues that the district court failed to provide proper
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    STATE v. JACKSON
    Cite as 
    26 Neb. App. 727
    jury instructions, that an exhibit was improperly excluded, that
    the evidence was insufficient to support a guilty verdict on the
    charge, and that his sentence was excessive. Based on the rea-
    sons that follow, we affirm.
    BACKGROUND
    On May 11, 2017, Jackson was charged by information
    with assault in the second degree, a Class IIA felony, in viola-
    tion of 
    Neb. Rev. Stat. § 28-309
     (Reissue 2016). The charge
    arose from an incident on October 18, 2016, at the Nebraska
    State Penitentiary, where Jackson was incarcerated. Jackson
    had been placed in the “control unit” approximately 1 month
    before the incident occurred. On October 17, Jackson indicated
    to a staff member that he was suicidal. Jackson told the staff
    member that he was going to jump off the sink in his cell and
    “crack [his] head open.” Jackson was subsequently moved to
    the skilled nursing facility (SNF). Inmates being taken to or
    from the control unit must be placed in restraints pursuant
    to Nebraska Department of Correctional Services procedures.
    When Jackson was moved from the control unit to the SNF, he
    was in restraints.
    At the SNF, Jackson was placed in a room with a padded
    bed which was equipped with a five-point restraint system. The
    five-point restraint system is used to hold a person flat on his
    or her back by attaching fabric restraints to the person’s legs,
    arms, and chest. Jackson was placed in the five-point restraint
    system. He remained in the five-point restraint system until
    dinner on October 18, 2016. Staff members released Jackson’s
    chest and right arm restraints to allow him to eat. After eat-
    ing, Jackson refused to allow the staff members to reattach the
    chest and right arm restraints.
    At approximately 6 p.m. on October 18, 2016, Sgt. William
    Hogan was given orders by his lieutenant to move Jackson
    from the SNF to the control unit. Hogan and another staff mem-
    ber went to Jackson’s room. Hogan entered Jackson’s room
    and removed the blanket covering Jackson. He then provided
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    Jackson with a T-shirt and sweatshirt, because Jackson had
    been wearing paper garments while in the SNF. Hogan undid
    the restraint on Jackson’s left arm to allow him to put on the
    clothing. After Jackson put on the clothing, Hogan approached
    him in order to put restraints on him for the transport to the
    control unit. Hogan said Jackson “told [him], if you put hands
    on me, I am going to put hands on you.” Hogan attempted to
    further communicate with Jackson regarding this statement and
    the situation, but Jackson did not say anything else. Hogan
    then leaned over Jackson to attempt to put the restraints on him
    and Jackson jerked his hand away. Hogan called for assistance
    from the emergency response team (ERT).
    Sgt. Jared Hanner was the ERT supervisor at that time. He
    responded to Hogan’s call, along with the other ERT mem-
    bers. Hogan described the situation to Hanner. Hanner then
    explained to the ERT members that they would act in unison
    to restrain Jackson’s arms if force was necessary. The ERT
    members entered the room along with Hogan and surrounded
    the bed that Jackson was on. Hanner asked Jackson “if he
    was going to fight,” to which Jackson did not reply. Hanner
    then gave a signal to the other ERT members to attempt to
    restrain Jackson’s arms in unison. Hanner restrained Jackson’s
    left arm, but the other ERT members were not able to restrain
    his right arm and Jackson hit Hanner in the face twice with
    his right fist. ERT members then restrained Jackson on the
    bed until his hands were handcuffed behind his back. A mem-
    ber of the medical staff then came and examined Jackson to
    ensure he was not injured. Jackson was not injured during the
    incident. He was ultimately transported via a gurney to the
    control unit. Hanner suffered a black eye and a chipped bone
    in his nose.
    After hearing all of the evidence, the jury convicted Jackson
    of assault in the second degree. The district court subsequently
    sentenced Jackson to 2 to 4 years’ imprisonment to run con-
    secutively to any other sentence Jackson was serving. Jackson
    received 2 days of credit for time served.
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    STATE v. JACKSON
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    26 Neb. App. 727
    ASSIGNMENTS OF ERROR
    Jackson asserts the district court erred in failing to provide
    a self-defense instruction to the jury and in excluding exhibit
    5 from evidence. He further asserts that there was insufficient
    evidence to sustain a conviction and that the district court
    imposed an excessive sentence.
    STANDARD OF REVIEW
    [1] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision. State v. Miller, 
    281 Neb. 343
    , 
    798 N.W.2d 827
     (2011).
    [2,3] 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. Hill, 
    298 Neb. 675
    , 
    905 N.W.2d 668
     (2018).
    Where the Nebraska Evidence Rules commit the evidentiary
    question at issue to the discretion of the trial court, an appel-
    late court reviews the admissibility of evidence for an abuse of
    discretion. 
    Id.
    [4] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same: An
    appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh the evidence; such
    matters are for the finder of fact. State v. Cotton, 
    299 Neb. 650
    ,
    
    910 N.W.2d 102
     (2018), disapproved on other grounds, State v.
    Avina-Murillo, 
    301 Neb. 185
    , 
    917 N.W.2d 865
     (2018). The rel-
    evant question for an appellate court is whether, after viewing
    the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt. 
    Id.
    [5] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by
    the trial court. State v. Russell, 
    299 Neb. 483
    , 
    908 N.W.2d 669
     (2018).
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    STATE v. JACKSON
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    26 Neb. App. 727
    ANALYSIS
    Jury Instruction
    At trial, Jackson requested that the court include a jury
    instruction regarding self-defense. The court determined that
    Jackson had not presented sufficient evidence to warrant the
    inclusion of a self-defense instruction.
    [6-9] 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 instruction. State v. McCurry, 
    296 Neb. 40
    ,
    
    891 N.W.2d 663
     (2017). To successfully assert the claim of
    self-defense, a defendant must have a reasonable and good
    faith belief in the necessity of using force and the force used
    in defense must be immediately necessary and justified under
    the circumstances. State v. Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
     (1999). The defendant bears the initial burden to produce
    evidence which supports a claim of self-defense. 
    Id.
     To suc-
    cessfully assert the claim of self-defense, a defendant must
    have a reasonable and good faith belief in the necessity of
    using force. 
    Id.
     Only unlawful force directed at a defendant
    provides a justifiable basis for self-defense. 
    Id.
     “Unlawful
    force” is force “which is employed without the consent of
    the person against whom it is directed and the employment
    of which constitutes an offense or actionable tort.” 
    Neb. Rev. Stat. § 28-1406
    (1) (Reissue 2016). The use of force by a war-
    den or other authorized official of a correctional institution is
    justified if:
    (a) He or she believes that the force used is neces-
    sary for the purpose of enforcing the lawful rules or
    procedures of the institution, unless his or her belief
    in the lawfulness of the rule or procedure sought to be
    enforced is erroneous and his or her error is the result
    of ignorance or mistake as to the provisions of sections
    28-1406 to 28-1416, any other provision of the criminal
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    law, or the law governing the administration of the
    institution;
    (b) The nature or degree of force used is not forbidden
    by section 28-1408 or 28-1409; and
    (c) If deadly force is used, its use is otherwise justifi-
    able under sections 28-1406 to 28-1416.
    
    Neb. Rev. Stat. § 28-1413
    (4) (Reissue 2016).
    The district court found that Jackson had not presented any
    evidence that the force used against him was unlawful. Jackson
    argues that the force was unlawful because the ERT members
    did not follow proper procedures. Jackson specifically alleges
    that this was a “planned use of force” which has a set of proce-
    dures which were not followed in this case. Brief for appellant
    at 18. In addition, Jackson alleges that the staff did not follow
    the guidelines for “levels of use of force.” Id. at 20. Finally,
    Jackson alleges that the ERT members were unnecessarily
    aggressive in their actions.
    While the violation of department policy may be evidence
    that the degree or nature of force used was unlawful, § 28-1413
    ultimately requires the court to make a determination that the
    force used was not forbidden by 
    Neb. Rev. Stat. § 28-1408
    (Reissue 2016) or 
    Neb. Rev. Stat. § 28-1409
     (Reissue 2016).
    As such, we need not review whether the ERT members vio-
    lated department policy but only determine whether the actual
    force used was appropriate under the statute. Jackson had been
    instructed to provide his hands to be restrained. He refused and
    then threatened Hogan. When confronted with additional ERT
    members, he did not respond to them and then punched Hanner
    in the face. These actions led up to the use of force against
    him. Given the amount of force used, and Jackson’s own
    actions leading up to it, the force used does not fall under any
    of the restrictions of § 28-1408 or § 28-1409. Thus, the force
    used was justifiable pursuant to § 28-1413 and was therefore
    lawful force.
    Jackson also argues that the force used was excessive and,
    thus, that he was entitled to a self-defense instruction. While
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    STATE v. JACKSON
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    Nebraska recognizes such instructions where arresting officers
    use excessive force, see State v. Yeutter, 
    252 Neb. 857
    , 
    566 N.W.2d 387
     (1997), this same standard has not been applied to
    staff at a correctional facility. However, the force used in this
    case would not rise to the level necessary to meet the defend­
    ant’s initial burden if such standards were applied given the
    justified and lawful use of force discussed above. As such, we
    conclude the district court did not err in finding that Jackson
    failed to produce sufficient evidence to warrant a self-defense
    jury instruction.
    A dmission of Evidence
    Jackson alleges that the court erred in excluding exhibit 5.
    Exhibit 5 consists of a video recording from a handheld camera
    of Jackson being transported from the SNF to his cell while
    strapped to a gurney. Jackson moved that the video be admit-
    ted under the rule of completeness after testimony from Hogan
    and Hanner regarding the aftermath of the incident. Exhibit
    5 picks up recording after the alleged assault when Jackson
    was restrained and removed from the SNF. Jackson’s attorney
    agreed with the district court that exhibit 5 did not show any
    events prior to or during the alleged assault.
    
    Neb. Rev. Stat. § 27-106
     (Reissue 2016) provides that when
    part of an act, declaration, conversation, or writing is given
    in evidence by one party, the whole on the same subject may
    be inquired into by the other. In the present case, the act we
    are concerned with is the alleged assault on Hanner which
    was entirely captured on another exhibit. Similarly, the events
    which would have impacted Jackson’s claim of self-defense all
    occurred before or at the time of the alleged assault, thus not
    triggering the rule of completeness. Therefore, we determine
    that the district court did not abuse its discretion in excluding
    exhibit 5.
    Sufficiency of Evidence
    Jackson argues that there was insufficient evidence to con-
    vict him of assault. He specifically argues that at the time
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    of the assault, he was not in control of his actions and was
    “reacting” to the staff members’ actions, and thus, he did not
    intentionally or knowingly harm Hanner. Brief for appellant
    at 24. While Jackson did testify that he was reacting, that his
    actions were unintentional, and that he did not know Hanner
    was standing there, he also testified that he purposely swung
    to defend himself. In addition, Hogan said Jackson made the
    statement immediately prior to the alleged assault that “if you
    put hands on me, I am going to put hands on you.” Based on
    this statement of Jackson’s intent at the time of the alleged
    assault along with his later testimony, when viewed in the light
    most favorable to the prosecution, we conclude that any ratio-
    nal trier of fact could have found that Jackson intentionally or
    knowingly unlawfully struck or wounded Hanner.
    Excessive Sentence
    Jackson’s final assignment of error is that the sentence
    imposed by the district court was excessive. Jackson was sen-
    tenced to 2 to 4 years’ imprisonment to run consecutive to any
    other sentences he was serving. The statutory sentencing guide-
    lines for a Class IIA felony has no minimum sentence and a
    maximum of 20 years’ imprisonment. 
    Neb. Rev. Stat. § 28-105
    (Reissue 2016). Thus, the district court’s sentence was within
    the statutory guidelines.
    [10-12] An appellate court will not disturb sentences that are
    within statutory limits, unless the district court abused its dis-
    cretion in establishing the sentence. State v. Decker, 
    261 Neb. 382
    , 
    622 N.W.2d 903
     (2001). Where a sentence imposed within
    the statutory limits is alleged on appeal to be excessive, the
    appellate court must determine whether the sentencing court
    abused its discretion in considering and applying the following
    factors: the defendant’s age, mentality, education, experience,
    and social and cultural background, as well as his past crimi-
    nal record or law-abiding conduct, motivation for the offense,
    nature of the offense, and the amount of violence involved in
    the commission of the crime. See 
    id.
     An abuse of discretion
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    takes place when the sentencing court’s reasons or rulings are
    clearly untenable and unfairly deprive a litigant of a substantial
    right and a just result. 
    Id.
    The district court noted at the sentencing hearing that it con-
    sidered Jackson’s character and condition, as well as the cir-
    cumstances of the crime and his history of assaults. Reviewing
    the relevant facts ourselves, we acknowledge Jackson’s age
    and the extensive time that he has been in the justice system.
    However, we concur with the district court that Jackson’s his-
    tory of assaults and the circumstances surrounding the present
    crime necessitate a sentence of imprisonment. The district
    court further balanced the sentence between the seriousness of
    the crime and the resultant injuries in this case. As such, we
    determine that the district court did not abuse its discretion in
    sentencing Jackson to 2 to 4 years’ imprisonment.
    CONCLUSION
    We conclude the district court did not err in denying
    Jackson’s request for a jury instruction on self-defense, in
    excluding exhibit 5 from evidence, or in the imposition of the
    sentence. We further conclude that there was sufficient evi-
    dence to convict Jackson of the alleged crime. The order of the
    district court is affirmed.
    A ffirmed.
    

Document Info

Docket Number: A-17-1154.

Citation Numbers: 26 Neb. Ct. App. 727, 923 N.W.2d 97

Judges: Pirtle, Bishop, Arterburn

Filed Date: 1/8/2019

Precedential Status: Precedential

Modified Date: 10/19/2024