State v. Chol ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. CHOL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JOHN D. CHOL, APPELLANT.
Filed May 26, 2015. No. A-14-759.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Thomas R. Lamb and Richard W. Tast, Jr., Senior Certified Law Student, of Anderson,
Creager & Wittstruck, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
IRWIN, INBODY, and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
John D. Chol was convicted in the Lancaster County District Court of strangulation;
terroristic threats; first degree false imprisonment; and third degree domestic assault, subsequent
offense. He now appeals from his convictions and sentences. Finding no merit to his assignments
of error, we affirm.
BACKGROUND
Chol resided in Lincoln, Nebraska with his girlfriend, Rebeca Boss, and her two children.
On the morning of November 3, 2013, Chol and Boss got into a verbal altercation, where Chol
threatened to kill Boss and told her he had a knife and a gun. Later that day, Chol again threatened
to kill Boss and began repeatedly hitting her. Chol slammed Boss’ head against a baby crib in their
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apartment and wrapped his hands around her neck, choking her to where she could not breathe and
became light-headed. Boss tried to leave the apartment, but Chol blocked the doorway, preventing
her from escaping. The assault left numerous injuries on Boss’ face, neck, and arms.
An interpreter was necessary in this case because Boss’ native language is Nuer, and she
speaks limited English. Prior to trial, Chol filed a motion to disqualify the interpreter. At a hearing
on the motion, Raul Escobar, the Nebraska State Court Interpreter Coordinator, testified that he
hired Sunday Gach to provide interpreter services. Gach has provided interpreting services for
several counties in Nebraska since 2007, and Escobar testified that when he hired her, she
underwent a lengthy interview process regarding her credentials, qualifications, education,
training, and experience. According to Escobar, there is no state certification examination for the
Nuer language, and therefore, there are no certified Nuer interpreters in Nebraska. He said there
were no other Nuer interpreters located in Lancaster County at that time.
Gach testified at the hearing that Nuer is her primary language, although she began learning
English when she was in fifth grade. She has completed online training courses for interpreting
and has also taken medical and legal terminology training courses. Although Chol testified that
Gach is the aunt to Boss’ older daughter, Gach denied the claim. Gach said that she has known
Boss since 2012 from the community and has interpreted for her in previous court hearings, but
she believed that she could be impartial in translating Boss’ testimony. The district court denied
Chol’s motion to disqualify Gach as an interpreter, finding that Gach’s denial of a familial
relationship with Boss was credible and determining that Gach was a qualified, competent, and
impartial interpreter.
A jury trial was held over the course of several days in July 2014. The jury found Chol
guilty of all four offenses. He was sentenced to 8 to 12 years’ incarceration for strangulation and
1 to 2 years’ incarceration for each of the other three charges. All sentences were ordered to be
served consecutively, and he received credit for 280 days served. Chol timely appeals to this court.
ASSIGNMENTS OF ERROR
Chol assigns that the district court erred in (1) providing instructions to the State to allow
it to overcome certain evidentiary objections, (2) failing to disqualify the interpreter, and (3)
imposing an excessive sentence.
STANDARD OF REVIEW
The responsibility for conducting a trial in an orderly and proper manner for the purpose
of ensuring a fair and impartial trial rests with the trial court, and its rulings in this regard will be
reviewed for an abuse of discretion. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
The appointment of an interpreter for an accused at trial is a matter resting largely in the
discretion of the trial court. State v. Topete, 221 Neb. 771, 380 N.W.2d 635 (1986).
An appellate court will not disturb sentences that are within the statutory limits, unless the
district court abused its discretion in establishing the sentences. State v. Stevens, 290 Neb. 460,
860 N.W.2d 717 (2015).
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ANALYSIS
Evidentiary Objections.
Chol assigns that the district court erred in advising the State on how to overcome
evidentiary objections that the court sustained regarding certain exhibits. He specifically claims
that the court failed to show impartiality when it assisted the State, and as a result, he was unfairly
prejudiced and did not receive a fair trial. We find that Chol failed to preserve this issue for
appellate review.
On several occasions during trial, Chol asserted foundational objections to the introduction
of evidence and sidebar discussions between the parties and the court followed. During such
discussions, the court informed the State of the types of foundation that was lacking. For example,
the State offered into evidence photographs depicting Boss’ injuries, and Chol objected on
foundational grounds. The court advised the State to establish the time the pictures were taken.
Similarly, the State offered into evidence photographs taken of Boss’ injuries two days after the
assault occurred, and Chol again asserted that foundation was lacking, arguing that what transpired
in the period between the assault and the time the photographs were taken was unknown. The court
suggested that the State ask the additional foundational question of whether Boss sustained any
injuries from the time the incident with Chol occurred and the time the photographs were taken.
A judge must be impartial, his or her official conduct must be free from even the
appearance of impropriety, and a judge’s undue interference in a trial may tend to prevent the
proper presentation of the cause of action. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567
(2004). A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable
person who knew the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice is shown. Id. A
defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of
overcoming the presumption of judicial impartiality. State v. Collins, 283 Neb. 854, 812 N.W.2d
285 (2012).
In the present case, however, after each sidebar discussion that Chol now challenges, he
did not object to the court’s comments, make a motion for a mistrial, or seek to have the judge
recuse himself. The failure to make a timely objection waives the right to assert prejudicial error
on appeal. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008). One cannot know of
purportedly improper judicial conduct, gamble on a favorable result as to that conduct, and then
complain that he or she guessed wrong and does not like the outcome. Id. Accordingly, because
Chol failed to object at the time, this issue has been waived.
Disqualification of Interpreter.
Chol asserts that the district court erred in failing to disqualify Gach as the interpreter for
trial because she was not certified and had a prior relationship with Boss. We disagree.
Any person who serves as an interpreter for persons unable to communicate the English
language in court proceedings shall meet the standards adopted by the Supreme Court. Neb. Rev.
Stat. § 25-2407 (Reissue 2008). Such standards shall require that interpreters demonstrate the
ability to interpret effectively, accurately, and impartially, both receptively and expressively, using
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any necessary special vocabulary. Id. Section 25-2407 only requires an interpreter to be licensed
when a person is appointed to interpret for deaf and hard of hearing persons.
Chol’s argument focuses on Gach’s ability to translate Boss’ testimony impartially, given
his assertion that Gach was, in fact, related to Boss and the women were generally familiar with
each other from the community. Contrary to Chol’s argument, Gach testified that she has no
familial relationship with Boss, testimony that the district court found credible, and a decision
which we do not reevaluate. See State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014) (appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate
explanations, or reweigh the evidence presented, which are within a fact finder’s province for
disposition). Gach further indicated that although she knew Boss and had previously provided
interpreter services for her, she would be able to interpret Boss’ testimony at trial impartially. Chol
does not explain how Gach’s familiarity with Boss would hinder her ability to interpret impartially,
and we cannot find that the fact that Gach and Boss were generally familiar with each other
rendered Gach unable to assist Boss impartially. Accordingly, we find no abuse of discretion in
the court’s determination that Gach demonstrated the ability to interpret impartially.
The evidence presented at the hearing also establishes that Gach was qualified to interpret
effectively and accurately, as required by § 25-2407. Gach has spoken both the Nuer and English
languages since she was approximately 10 years old. She has completed training courses in legal
and medical terminology and has provided regular interpreter services for Nebraska courts since
2007. Gach has worked in the county, district, and juvenile courts in the counties of Lancaster,
Douglas, Sarpy, Hall, Saline, and Hamilton. She also acts as an interpreter for an agency that works
with various businesses in the Lincoln area. Gach is not certified, but there is no ability to be
certified as an interpreter for the Nuer language in Nebraska. Therefore, the district court did not
abuse its discretion in finding Gach qualified and allowing her to provide interpreter services at
trial.
Excessive Sentence.
Chol was convicted of strangulation; terroristic threats; first degree false imprisonment;
and third degree domestic assault, subsequent offense. Strangulation is a Class III felony,
punishable by 1 to 20 years’ imprisonment. Neb. Rev. Stat. § 28-310.01(3) (Reissue 2008); Neb.
Rev. Stat. § 28-105 (Cum. Supp. 2014). Chol received a sentence of 8 to 12 years for this offense.
First degree false imprisonment is a Class IIIA felony which carries with it a maximum sentence
of 5 years’ imprisonment. Neb. Rev. Stat. § 28-314 (Reissue 2008); § 28-105. Chol was sentenced
to 1 to 2 years’ imprisonment. Terrorist threats and third degree domestic assault, subsequent
offense are Class IV felonies, punishable by a maximum of 5 years’ imprisonment. Neb. Rev. Stat.
§ 28-311.01 (Reissue 2008); Neb. Rev. Stat. § 28-323(4) (Cum. Supp. 2014); § 28-105. Chol
received sentences of 1 to 2 years for each offense. All of his sentences were ordered to be served
consecutively. Although all of Chol’s sentences are within the statutory limits, he claims they are
excessive.
When imposing a sentence, the sentencing judge should consider the defendant’s (1) age,
(2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
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nature of the offense and (8) the violence involved in the commission of the offense. State v.
Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
At the time of sentencing, Chol was 33 years old. His criminal history includes multiple
prior violent offenses. The present incident was not the first time he assaulted Boss; in fact, his
record includes charges of third degree domestic assault on a pregnant woman, which was reduced
to third degree assault; second degree domestic assault, which was reduced to third degree
domestic assault, and a prior conviction of third degree domestic assault. His record also includes
driving under the influence, witness tampering, criminal mischief, carrying a concealed weapon,
and, while incarcerated on the present offenses, he was charged with assault by a confined person.
The facts and circumstances surrounding the assault were terrifying for Boss, occurred in
front of her 3-year-old child, and resulted in serious injuries to Boss. In determining an appropriate
sentence, the district court observed that this was a very brutal attack and said that it could not
ignore the very serious facts and circumstances of the case. The court thus found that imprisonment
was necessary for the protection of the public because of the substantial risk that, during a period
of probation, Chol would engage in additional criminal conduct. The court also found that a lesser
sentence would depreciate the seriousness of the crimes and promote disrespect for the law.
Considering that the sentences fall within the statutory limits, we cannot find that they are
excessive or constitute an abuse of discretion.
CONCLUSION
We find no merit to Chol’s assignments of error and therefore affirm his convictions and
sentences.
AFFIRMED.
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