State v. Thon ( 2021 )


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  •                          IN THE NEBRASKA COURT OF APPEALS
    MEMORANDUM OPINION AND JUDGMENT ON APPEAL
    (Memorandum Web Opinion)
    STATE V. THON
    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.
    KEAT THON, APPELLANT.
    Filed December 7, 2021.     No. A-21-414.
    Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, Cindy A. Tate, and Rebekah S. Keller
    for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
    PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
    PIRTLE, Chief Judge.
    INTRODUCTION
    Keat Thon appeals from his plea-based conviction in the district court for Douglas County
    for manslaughter. He argues that the trial court erred by allowing victim impact statements at the
    sentencing hearing and by imposing an excessive sentence. Based on the reasons that follow, we
    affirm.
    BACKGROUND
    Thon was charged with manslaughter, a Class II felony, and he pled no contest to the
    charge. The State provided the following factual basis for the charge:
    On or about Friday, July 30th of 2020, officers responded to a shooting. Upon
    arrival, they located the victim, Nuer Yuek, inside the residence suffering from a gunshot
    wound to the chest. He was later transported to UNMC where he succumbed to his injuries.
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    Detectives with the homicide unit interviewed the 9-1-1 caller, Keat Thon, who
    made admissions implicating himself in the shooting. He advised that he was there with
    the victim messing around with the firearm when he pointed the gun at the victim, pulled
    the trigger, and the firearm went off.
    He stated he believed the gun to have no live rounds in it when he pulled the trigger.
    However, he also admitted to hiding the firearm in the bushes in the front yard of 1520
    North 31st Street after the shooting. During the processing of the scene, officers did locate
    a semiautomatic firearm outside the house in the bushes.
    All events occurred in Omaha, Douglas County, Nebraska.
    The trial court accepted Thon’s plea, found him guilty of the charge, and ordered a
    presentence investigation report.
    At the sentencing hearing, the victim’s father provided a victim impact statement. Thon
    objected 13 times to statements made by the victim’s father, and the trial court sustained every
    objection. Some of the statements were also stricken from the record. The court eventually ended
    the victim’s father’s remarks because he was “getting way off base.” The court ultimately
    sentenced Thon to a term of 10 to 12 years’ imprisonment.
    ASSIGNMENTS OF ERROR
    Thon assigns that the trial court erred in (1) allowing victim impact statements at the
    sentencing hearing that violated Thon’s Eighth Amendment rights and Nebraska law and (2)
    imposing an excessive sentence.
    STANDARD OF REVIEW
    An appellate court will not disturb a sentence imposed within the statutory limits absent an
    abuse of discretion by the trial court. State v. Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
     (2019). An
    abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
    unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 
    Id.
    ANALYSIS
    Victim Impact Statements.
    Thon first assigns that the trial court erred in allowing victim impact statements at
    sentencing that violated his Eighth Amendment rights and Nebraska law. He argues that the court
    considered improper statements made by the victim’s father, despite sustaining Thon’s objections
    and motions to strike, in determining Thon’s sentence. Thon believes this to be true because the
    trial court did not stop or admonish the victim’s father from making improper statements and did
    not inform the parties that it did not take the improper statements into consideration when
    determining the sentence.
    The U.S. Supreme Court has held that victim impact statements considered at sentencing
    to show the personal characteristics of the victim or the emotional impact of the crime on the
    family do not violate the U.S. Constitution. Payne v. Tennessee, 
    501 U.S. 808
    , 
    111 S. Ct. 2597
    ,
    
    115 L. Ed. 2d 720
     (1991); State v. Galindo, 
    278 Neb. 599
    , 
    774 N.W.2d 190
     (2009). There is a
    substantive limitation on the admissibility of victim impact information: victim family members’
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    characterizations and opinions about the crime, the defendant, or the appropriate sentence may not
    be received in evidence. State v. Vela, 
    279 Neb. 94
    , 
    777 N.W.2d 266
     (2010). To the extent that
    victim impact statements go merely to showing the personal characteristics of the victim or the
    emotional impact of the crime on the family, their admission at sentencing has been expressly held
    not to violate the U.S. Constitution. State v. Bjorklund, 
    258 Neb. 432
    , 
    604 N.W.2d 169
     (2000),
    abrogated on other grounds, State v. Mata, 
    275 Neb. 1
    , 
    745 N.W.2d 229
     (2008). The admission
    of a victim’s family members’ characterizations and opinions about the crime, the defendant, and
    the appropriate sentence violates the Eighth Amendment. State v. Bjorklund, 
    supra.
     However, the
    Eighth Amendment is not violated unless the sentencing body considers impermissible statements
    in reaching the sentencing decision. State v. Bjorklund, 
    supra.
     While a jury will be assumed to
    have considered impermissible victim impact statements, the presumption for judges is the
    opposite. See 
    id.
     In the absence of evidence to the contrary, the presumption is that a judge will
    disregard evidence that should not have been admitted. 
    Id.
    In the present case, assuming without deciding that some of the statements made by the
    victim’s father crossed the line into opinions about the crime and the defendant, Thon objected to
    such statements and the district court sustained those objections, as well as motions to strike the
    statements. Therefore, the statements that Thon objected to as violating his Eighth Amendment
    rights were excluded by the court and not considered. The Eighth Amendment is not violated
    unless the sentencing body considers impermissible statements in reaching the sentencing
    decision. 
    Id.
    In addition, although the court did not explicitly tell the parties that it did not take the
    improper statements into consideration as Thon contends it should have, it stated the factors it did
    take into account in determining the sentence. It did not make any statement which would indicate
    that it utilized the victim impact statements in determining the sentence it imposed. Further, Thon
    has not presented any evidence or pointed out any indication in the record that the court considered
    the victim’s father’s statements. As previously stated, in the absence of evidence to the contrary,
    the presumption is that a judge will disregard evidence that should not have been admitted. Thon
    has failed to overcome the presumption that the court disregarded any improperly received
    statements. Accordingly, this assignment of error fails.
    Excessive Sentence.
    Thon next assigns that the trial court abused its discretion by imposing an excessive
    sentence. Thon was convicted of manslaughter, a Class IIA felony, punishable by a maximum
    sentence of 20 years’ imprisonment with no minimum sentence required. See Neb. Rev. Stat.
    § 28-305 (Reissue 2016) and § 28-105 (Cum. Supp. 2020). Thon was sentenced to a term of 10 to
    12 years’ imprisonment. His sentence is within the statutory limits and, therefore, will not be
    disturbed absent an abuse of discretion. See State v. Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
     (2019).
    When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
    mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
    record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
    nature of the offense and (8) the violence involved in the commission of the crime. State v. Chairez,
    
    302 Neb. 731
    , 
    924 N.W.2d 725
     (2019). The appropriateness of a sentence is necessarily a
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    subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding the defendant’s life. 
    Id.
    Thon argues that the trial court failed to consider certain mitigating factors, specifically,
    his age, experience, mentality, social background, criminal background, and education. Thon was
    19 years old at the time of the offense. He contends that he showed remorse and a willingness to
    change, and that his mentality was that of a “young undeveloped brain making reckless decisions
    without thinking (as can be expected of a 19 year old).” Brief for appellant at 15. Thon further
    contends the court failed to consider his lack of criminal history, as well as his low risk to reoffend
    and his family support system.
    Before pronouncing Thon’s sentence, the court stated that it had to take many factors into
    consideration in crafting an appropriate sentence. The court indicated that by entering a no contest
    plea Thon showed some acceptance of responsibility for the crime and saved the victim’s family
    from having to go through a trial. The court stated that there were factors that weighed against a
    maximum sentence, but also factors that weighed against probation, and that somewhere in
    between was the correct sentence. The court also noted Thon’s lack of a prior criminal record and
    the results of the assessment in the presentence investigation report.
    Based on the record before us, the trial court considered the appropriate factors and did not
    consider any inappropriate or unreasonable factors in determining the sentences. We find that the
    court did not make its decision based upon reasons that are untenable or unreasonable, nor was its
    action clearly against justice or conscience, reason, and evidence. Thon’s second assignment of
    error also fails.
    CONCLUSION
    We find no abuse of discretion in the decision of the district court to sentence Thon to 10
    to 12 years’ imprisonment. Accordingly, Thon’s conviction and sentence is affirmed.
    AFFIRMED.
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Document Info

Docket Number: A-21-414

Filed Date: 12/7/2021

Precedential Status: Precedential

Modified Date: 12/7/2021