State v. Bradley ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BRADLEY
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.
DONTEVIAN L. BRADLEY, APPELLANT.
Filed August 14, 2018. No. A-17-644.
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
Matthew K. Kosmicki for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Dontevian L. Bradley was convicted by a jury of possession of a deadly weapon (firearm)
by a prohibited person, terroristic threats, use of a deadly weapon (firearm) to commit a felony,
and tampering with a witness. He was found not guilty of a third degree domestic assault charge.
The Lancaster County District Court sentenced Bradley to consecutive sentences totaling 18 to 27
years’ imprisonment. Bradley raises a number of errors on appeal; we affirm.
II. BACKGROUND
On the morning of November 15, 2016, Bradley was arguing with his girlfriend outside an
apartment building. Roofers working on a nearby house verbally intervened after the argument
became physical. Bradley, upset at the roofers’ intervention, procured a handgun from nearby and
pointed it at the roofers while threatening them. Bradley then resumed arguing with his girlfriend.
The police were called, and Bradley was arrested. The police were unable to locate a handgun.
-1-
1. PROCEDURAL BACKGROUND
A criminal complaint was filed against Bradley in the county court for Lancaster County
on November 16, 2016, charging him with possession of a firearm by a prohibited person and
terroristic threats. His initial bond was set at “$50,000 Ten Percent Allowed.” His case was bound
over to the district court, and on January 4, 2017, an information was filed charging Bradley with
possession of a firearm by a prohibited person, terroristic threats, and third degree domestic assault.
Bradley filed a motion for a bond review hearing and the State filed a motion to amend the
information. A hearing on those motions took place on January 9, 2017. The court granted the
State’s motion and an amended information was filed adding a charge for tampering with a witness
or informant. Bradley’s motion to reduce his bond amount was denied.
The State filed a second motion to amend the information on February 22, 2017. A hearing
took place on February 23, and the State was granted leave to file a second amended information
adding a charge for use of a firearm to commit a felony. Bradley’s counsel made an oral motion to
reduce his bond amount to “$40,000, 10 percent,” but the court denied the motion. The court stated
that a “$50,000 percentage bond based upon these charges, I think, is, frankly, a gift.” The State
also filed a motion to endorse three additional witnesses on April 20, which the court granted; only
one of the additional witnesses, Ty S., ended up testifying.
On May 2, 2017, the day before trial was to commence, a hearing for “a bond swear” took
place. Bradley had posted the previously set bond, however, the State made an oral motion to
increase Bradley’s bond to “$100,000, percentage” based on the additional charges and its
assertions that several of its witnesses had reported being threatened regarding their involvement
in the case. The State’s motion was granted, and Bradley’s bond was increased to “$100,000,
percentage.” Bradley also made an oral motion at the hearing to continue the trial in order to depose
a witness (the girlfriend), which the court denied.
2. TRIAL
Bradley’s trial commenced on May 3, 2017. During trial, the parties stipulated that Bradley
had previously been convicted of a felony. A summary of the pertinent testimony follows.
(a) State’s Evidence
(i) Evidence Relevant to Firearm and Terroristic Threats Charges
Bradley was 20 years old at the time of trial. His girlfriend was 17 years old. (We will
continue to refer to this person as Bradley’s girlfriend although she testified at trial that she and
Bradley had broken up “[m]onths ago.”) Bradley’s girlfriend testified that she went to see Bradley
at his apartment to “argue with him” at approximately 4 a.m. on the morning of November 15,
2016. She had seen him with another female on a mutual friend’s “Snapchat.” The other female,
who was 16 years old, was at Bradley’s apartment when she arrived. Bradley and his girlfriend
began arguing, and at some point the argument moved outside. Bradley told his girlfriend to leave,
which she did, but she returned when she realized she did not have her cell phone. She and Bradley
began arguing again, and the argument became physical. Bradley held her against a wall by her
throat, and she acknowledged that Bradley had also hit her in the face, but she did not recall exactly
-2-
when that happened or how he hit her. Nearby roofers began to yell down to intervene, and Bradley
responded to them “to mind their business.” The girlfriend walked away for a couple of minutes,
and when she returned, Bradley was in the middle of the alley and “everybody was yelling.” The
girlfriend said Bradley hit the windshield of her car with his fist. Police arrived and arrested
Bradley. She stated on cross-examination that she never saw Bradley with a gun.
The 16-year-old female testified that she was at the apartment when Bradley’s girlfriend
arrived, and the argument between Bradley and his girlfriend eventually moved outside where it
escalated and became physical. She said there were two males who had been at the apartment, and
after she saw Bradley slap his girlfriend, she went to get one of the males to stop Bradley from
hitting his girlfriend. Bradley came around the corner of the building and asked one of the males,
who had a gun in the waistband of his pants, to hand him the gun. Bradley took the gun and was
“waiving it” at the roofers. The female remembered Bradley racking the slide of the gun one time
while he was standing by his girlfriend’s car. The 16-year-old testified that “[a]t some point,” one
of the males came and grabbed the gun and took off with it, “and then the police just so happen[ed]
to show up, like, a minute later.”
Nathaniel W., Lavon M., Ty S., and another worker were roofing a house across the alley
from an apartment building when they noticed a woman and a man, later identified as Bradley,
arguing outside of the apartment building. Nathaniel said he saw the couple arguing and “one thing
kind of led to another, and [Bradley] started putting his hands on [the woman’s] throat or her neck.”
Lavon testified that Bradley grabbed the woman by the shoulders and “slammed her against the
car,” and later grabbed her by the neck as she was “swinging on him.” Lavon said the other roofers
wanted to call the police, but Lavon did not want to. Instead he yelled out to Bradley something
like, “Hey, cool out, chill out,” though he did not recall the exact words he used.
According to Nathaniel, Bradley told the roofers “to mind [their] own business,” and made
a comment “about being in a gang, and then he [said] that he could kill all of us if he wanted to.”
Bradley went around the corner of the apartment building, out of Nathaniel’s view, and returned
approximately 30 seconds later with a gun. According to Nathaniel, Bradley racked the slide of
the gun twice, ejecting a round each time, and told the roofers “‘I only need one to kill you.’”
Nathaniel testified that Bradley then walked backed to an alleyway where he could not see him,
and Nathaniel told his boss to hide, saying, “he has a gun, man, . . . [H]ide, he has a gun.” When
Bradley came back from “around the corner,” Nathaniel no longer saw the gun, and Bradley
continued to argue with the female. Nathaniel and other workers went to the other side of the roof
“to be on the safe side” because, “[w]ell, he pulled the gun.” When asked if he thought he might
get shot at, Nathaniel responded, “Yes.”
Lavon testified that after he tried to get Bradley to calm down, Bradley said, “everybody
in the mother fucking hood mind their own fucking business.” Lavon told Bradley he did not think
there were any hoods in Lincoln. Bradley “and his homies walked in the house and proceeded to
come back with a .380 Hi-Point gun and proceeded to point it at us.” Bradley “pointed the gun and
racked it back,” and said, “‘It only takes one to kill you.’” Lavon said Bradley “pointed the
handgun, cocked it back two times,” and Lavon thought, “Oh, shit. He has a gun.” Lavon explained
that when you “rack the slide, you’re basically putting a bullet in the chamber. You rack it once,
you put a bullet in there. You rack it again, it ejects the bullet out beside the gun.” Although Lavon
-3-
testified that Bradley “was just upset about the situation that happened,” and “didn’t want to cause
me no physical harm,” Lavon said one of the other workers was nervous and started crying.
Lavon, who was born and raised in Chicago, Illinois, said he was familiar with guns
because he used to be an active gang member. He also testified that the gun Bradley used was a
“.380 Hi-Point,” which he knew because he had owned one previously. Lavon was shown a picture
of a gun (exhibit 7), which he said was similar to the handgun that he saw Bradley holding. Lavon
also testified about Bradley hitting the windshield of the girlfriend’s car with the handgun.
Ty testified he saw Bradley with the female arguing in a parking lot. He was up higher on
the roof than where Lavon was working. After another roofer said something, Ty turned around
and saw Bradley with the female “in a choke hold up against the brick building.” However, Ty did
not watch “any more than 15 seconds,” and turned around and started shingling again. He never
saw Bradley with a gun, but he did hear a sound “like glass shattering.”
One of the roofers called the owner of the roofing company to report what had happened.
The owner then came over to their location and called the police. Police arrived and arrested
Bradley, but they did not find a gun. After the officers left, the roofers located a bullet in the alley
when they were cleaning up, and police returned and collected it.
The owner of the roofing company was not present during the confrontation between
Bradley and the roofing crew; however, he testified that he received a call from one of his crew
members who told him that they had been threatened with a gun, so he went to their location and
called the police.
Another employee who “sell[s] roofs” for the company was with the owner when both he
and the owner received a phone call that someone had pulled a gun on the crew. He and the owner
arrived at the house where the roofers were working and called the police. After the police left, the
employee left the job site to go to his van, retrieved his own gun “[f]or the safety of our
employees,” and then returned to the job site. He testified his gun was a “Ruger .380.” Prior to
leaving the alley for lunch, he was sweeping up the roofing debris in the alley and noticed a bullet
ahead of where he was sweeping. He testified he did not move or touch the bullet, and called police
after he located it. The employee testified that he uses a different type of bullet in his gun than the
one located in the alley, and he responded affirmatively when asked if he was “a hundred percent
positive” it was not his bullet.
John Brandl, a police officer with the Lincoln Police Department, arrived at the scene in
response to a call for a “weapons violation in progress” and found Bradley and his girlfriend
arguing. He took Bradley into custody, but could not locate a gun. He stated he could not search
the area because there was no indication as to a starting point for a search, though the girlfriend’s
car was searched. They also searched the area for bullets, but could not locate any. Since it was
“late fall,” there were “a lot of leaves, debris, debris from the roofing folks,” and they “[d]id not
find a bullet at that time.” Officer Brandl later returned to the alley and picked up the bullet located
by the roofers and put it in a plastic evidence bag. He testified the bullet said “380” on it. Officer
Brandl also explained that when “someone racks a slide of a .380,” as the slide is drawn back, it
“pulls a round from the magazine and puts it into the chamber of the weapon.” If the weapon is
fired, it ejects a spent shell out. If the slide is pulled back “with a live round in, it will eject the live
round out and then insert another round from the magazine into a chamber.” When Officer Brandl
-4-
was shown exhibit 7 and asked if it “look[ed] to be a .380-caliber,” he responded, “It could be,”
but that he did not “see any specific markings on that particular one to show that it’s a .380.”
(ii) Evidence Related to Witness Tampering Charge
Bradley’s girlfriend testified that she spoke with Bradley multiple times while he was in
jail after his arrest; they were “still boyfriend and girlfriend” at that time. Recordings of two
telephone calls were played in open court during her direct examination, and she testified she and
Bradley were talking in third person to each other during those calls because she knew they
“weren’t supposed to have communication.” The following colloquy regarding the first telephone
call took place during the State’s direct examination of the girlfriend:
Q. . . . Then there towards the end of the call, he says, “Hopefully, [girlfriend’s
name] doesn’t show up to that,” and he’s talking about a prelim. Do you recall that part of
the recording?
A. Yes.
Q. And he says, “Hopefully, [girlfriend’s name],” but he’s obviously still talking to
you; correct?
A. Correct.
Q. So he’s essentially telling you not to show up?
A. I mean, he wasn’t telling me not to because --
Q. But he says, “Hopefully, [girlfriend’s name] doesn’t show up to that.”
A. Meaning it was, like, my choice.
Q. And saying if she doesn’t accept a subpoena or if she happens to not be there
when it’s served or if she gets served and doesn’t show up, it would just be a little fine for
[girlfriend’s name]?
A. Correct.
The girlfriend was questioned similarly by the State during its direct examination regarding
the second telephone conversation:
Q. And in that second call, the one from November 17th, Mr. Bradley says
something. If [girlfriend’s name] says I never touched her, then, essentially, it would be
better for his case. Do you recall him saying that in the call?
A. Yeah.
Q. And he’s talking to you; correct?
A. Correct.
Q. And you respond, “The only thing that kind of makes me nervous or worried is
they took pictures of her, the marks on her face and neck.” Do you recall talking about
that?
A. Correct.
Q. And then you say you could play it off as nervousness or being nervous; right?
A. Correct.
-5-
On cross-examination, the girlfriend testified she did not feel intimidated to not show up
in court, nor did she feel that Bradley was “begging” her not to show up.
(b) Defense’s Evidence
Bradley testified that on November 15, 2016, his girlfriend came over to the apartment
where he was living and they began arguing around 3 a.m. The argument eventually moved outside
at approximately 7:30-7:45 a.m., and there were roofers across the alley working. His girlfriend
left, but then returned shortly thereafter. She began arguing with him again, pushing him, and was
trying to hit him. Bradley put his hands on his girlfriend’s shoulders to hold her back and push her
away from him. He heard “somebody yell something” but he could not tell who it was. At that
point his girlfriend slapped him and he grabbed her by the neck. He heard the yelling again and
determined it was coming from the roofers. He let go of his girlfriend and began yelling at the
roofers to mind their own business. He and the roofers began to yell back and forth, and eventually
two of his friends came outside and were standing with him while he was arguing with the roofers.
He stated that Lavon was antagonizing him, and in response he was “trying to get [Lavon] to come
get off the ladder [he was on] so [they] could fight.” He denied threatening Lavon with a gun. He
stated that he stopped arguing with Lavon once Lavon refused to come down and he realized there
was not going to be a fight. He was upset because “none of this should have happened” and he hit
the windshield on his girlfriend’s car. Bradley and his girlfriend then continued arguing outside of
the apartment until the police arrived and took him into custody.
Regarding the telephone calls to his girlfriend while he was in jail, Bradley admitted to the
two jail calls with his girlfriend, and acknowledged that they were talking in third person in case
anyone was listening. However, Bradley denied trying to make his girlfriend avoid service of a
subpoena. Bradley testified,
No. I couldn’t really directly talk to her about what was going on, and so I was just telling
her, like, that if she doesn’t go to court - I’m not telling her not to go to court, but I’m
saying that if she doesn’t go to court, my case will most likely get dropped and I’ll get off,
but I’m not telling her, “Don’t go do it.”
Bradley did acknowledge asking his girlfriend to go to the prosecutor’s office “and tell them
nothing happened.”
Bradley’s father also briefly testified, however, his testimony is not relevant to any of the
issues presented on appeal.
The jury found Bradley guilty of possession of a firearm by a prohibited person, terroristic
threats, use of a firearm to commit a felony, and tampering with a witness or informant. He was
found not guilty of third degree domestic assault. He was sentenced on June 20, 2017, to
consecutive sentences totaling 18 to 27 years’ imprisonment. Bradley appeals.
III. ASSIGNMENTS OF ERROR
Bradley assigns the court erred by (1) increasing his bond amount, (2) denying his motion
to continue trial, (3) allowing the State to amend the information, (4) allowing the State to endorse
additional witnesses, (5) overruling his evidentiary objections to Exhibit 7 (picture of gun), and
-6-
(6) allowing inadmissible hearsay evidence. Bradley also claims (7) the evidence was insufficient
to convict him and (8) his sentences are excessive.
IV. STANDARD OF REVIEW
A decision whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Baxter, 295
Neb. 496, 888 N.W.2d 726 (2017). A judicial abuse of discretion exists only when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. Id.
The decision to grant or deny an amendment to a pleading rests in the discretion of the
court. State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009).
Whether to permit the names of additional witnesses to be endorsed upon an information
after the information has been filed is within the discretion of the trial court. State v. Sandoval, 280
Neb. 309, 788 N.W.2d 172 (2010).
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. 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. State v. Hill, 298 Neb. 675, 905 N.W.2d 668
(2018).
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. State v. Cotton, 299 Neb. 650, 910 N.W.2d
102 (2018). The relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
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 relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
V. ANALYSIS
1. EXCESSIVE BOND
As noted earlier, Bradley’s bond was initially set as a $50,000 percentage bond, and then
the day before trial was to commence, the State made an oral motion to increase Bradley’s bond
to a $100,000 percentage bond based on the additional charges and its assertions that several of its
witnesses had reported being threatened regarding their involvement in the case. The State’s
motion was granted. Bradley assigns the court erred by increasing his bond amount. He argues he
is “entitled to a reasonable bond or, in other words, not an excessive bond.” Brief for appellant at
16. He points out that during prior bond reduction hearings, the court had found “the original bond
amount was reasonable,” and “[i]t wasn’t until Bradley raised enough money to post the original
-7-
amount of bond that the State, in what seems like a panic, asked to increase Bradley’s bond.” Id.
at 17. He concludes that “[t]he only way that it can be interpreted is the State never thought Bradley
would be able to post bond and when he did, the State increased his bond so that he would never
gain release,” and that “[u]nless the right to bail before trial is preserved, the presumption of
innocence, secured only after centuries of struggle, would lose its meaning.” Id.
While Bradley’s assignment of error states that the court abused its discretion by increasing
his bond amount, his arguments, including his entitlement to “a reasonable bond,” amount to an
argument that his bail was excessive. And, the issue of excessiveness of pretrial bail is not
reviewable after a conviction and sentence. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
The appropriate form of relief from a denial of a motion to reduce bail claimed to be excessive is
by habeas corpus. Id. The alleged excessiveness of Bradley’s pretrial bail became irrelevant upon
his convictions and sentences; therefore, as stated in State v. Harig, supra, the issue is no longer
reviewable.
2. DENIAL OF MOTION TO CONTINUE TRIAL
Bradley claims the district court erred by denying his motion to continue the trial so he
could depose his girlfriend. He argues that a continuance would not have prejudiced the State and
that “[c]ourts cannot require defense counsel to take 11th hour depositions.” Brief for appellant at
19. He asserts that the result of the court’s failure to grant the continuance was “to force Bradley
to go to trial without being able to investigate the contradictory statement made by the alleged
victim/witness.” Id.
The motion to continue the trial was made orally at a hearing on May 2, 2017, the day prior
to the commencement of trial on May 3. Bradley’s counsel wanted to depose Bradley’s girlfriend
because counsel had recently noticed in a video that the girlfriend made comments that
contradicted her statements about never seeing a gun. Defense counsel said it was hard to
understand the girlfriend in the video because she was crying. Defense counsel indicated that he
had not previously deposed the girlfriend because he did not think he needed to; he admitted,
however, that he had not played the video “the whole way through” until the day before the hearing
on his motion to continue.
The court gave Bradley leave to depose the girlfriend until she was ordered to appear the
next day, May 3, 2017, at 1:30 p.m., and denied the motion to continue. On May 3, upon inquiry
from the court, Bradley’s counsel informed the court he decided to not depose the girlfriend, but
he had spoken to her on the telephone and was able to “ask the questions he wanted to ask.”
Notably, the girlfriend testified that she never saw Bradley with a gun. As the State points
out, since the girlfriend testified that Bradley did not have a gun (which was consistent with her
initial statement to the police), and the State never asked the girlfriend if she saw Bradley with a
gun, there was no prejudice to Bradley by not being allowed to continue the trial until he could
depose the girlfriend to further explore a possible inconsistent statement about the gun.
We agree with the State. Bradley does not claim he was denied timely access to the video.
Further, Bradley’s inability to depose the girlfriend about possible contradictory statements on
whether she saw Bradley with a gun was not prejudicial to Bradley’s defense because the girlfriend
testified that she did not see Bradley with a gun. The State did not attempt to impeach the girlfriend
-8-
with any statements made on the video. The district court did not abuse its discretion by denying
Bradley’s motion to continue trial.
3. AMENDING INFORMATION
Bradley did not object to the State filing an amended information on January 9, 2017.
However, when the State sought to file a second amended information on February 23, in which
the State added the use of a deadly weapon to commit a felony charge, Bradley objected. Defense
counsel argued, “It’s just a form of punishment because [Bradley] wouldn’t take a plea offer.”
Defense counsel acknowledged being “informed a long time ago about this, at least when the plea
offer was made, that this would be an added charge; so no surprise.” The district court, noting this
was not a surprise and that no valid reason or objection was given, granted the State leave to
amend. As a result, Bradley claims on appeal that he was prejudiced and denied a fair trial because
the “the court’s ruling placed him in a difficult position, defending on the run.” Brief for appellant
at 21. He claims this was an abuse of discretion.
The State correctly points out that objections to the form or content of an information
should be raised by a motion to quash. State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
Failure to file a motion to quash waives any argument that a court erred in allowing the State to
amend the information against the defendant. See State v. Collins, 281 Neb. 927, 799 N.W.2d 693
(2011). Bradley does not direct us to such a motion to quash, nor do we see such a motion in the
record before us. Accordingly, Bradley has waived this argument. However, even if he had not
waived it, Bradley would not be able to show any prejudice by the addition of this charge since it
was acknowledged at the February 23, 2017, hearing that the amendment was “no surprise” and
trial did not start until May 3. See State v. Collins, supra (no abuse of discretion when information
amended just 20 days before trial). The district court did not abuse its discretion by allowing the
State to file the second amended information.
4. ENDORSEMENT OF ADDITIONAL WITNESSES
At a hearing held April 19, 2017, the State requested a hearing on a motion to endorse
additional witnesses; defense counsel acknowledged receiving an email as to who the State was
adding. A motion listing three additional witnesses was filed the next day. At the April 26 hearing
on the State’s motion, defense counsel objected to the additional witnesses “because of the late
hour that this notice has come out.” Defense counsel added, “But, to be perfectly honest with the
Court, these are all people that were mentioned in the report. I was aware of each one of them; so
it’s not like it’s a new witness that I never heard of before.” The court sustained the State’s motion.
Bradley now argues the court erred by granting the State’s motion “on practically the eve of trial,”
and “[t]here was no time for Bradley to account for those changes in his trial strategy.” Brief for
appellant at 21.
Nebraska law requires a prosecuting attorney to endorse the names of known witnesses at
the time the information is filed. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010); see,
also, Neb. Rev. Stat. § 29-1602 (Reissue 2016). The purpose of this requirement is to give the
defendant notice as to witnesses who may testify against him or her and give the defendant an
opportunity to investigate them. State v. Sandoval, supra. However, a trial court may allow
-9-
witnesses to be endorsed after an information is filed when doing so does not prejudice the
defendant in the preparation of his or her defense. State v. Molina, 271 Neb. 488, 713 N.W.2d 412
(2006).
Bradley cannot show he was prejudiced by the court’s decision; he admitted at the hearing
that he was aware of each one of the added witnesses. Additionally, two of the three witnesses did
not testify. The witness who did testify was one of the roofers (Ty), and he only offered evidence
cumulative to several others regarding seeing Bradley and his girlfriend arguing. And Ty testified
he never saw a gun. It is difficult to fathom how the late endorsement of this witness was
prejudicial to Bradley. The district court did not abuse its discretion in permitting the prosecution
to endorse the three additional witnesses.
5. EXHIBIT 7
When conducting its direct examination of Lavon, the State offered exhibit 7, a picture of
a handgun purportedly similar to the one Lavon saw Bradley holding on the day of the incident.
The State asked, “Obviously not the actual gun [Bradley] had, but otherwise similar in look and
make and model?” Lavon replied, “Yes.” Defense counsel objected “on foundation, 403, and
confrontation,” but clarified that his objection was on “foundation and 403 and that it’s
prejudicial.” The State responded it was “offering it for demonstrative evidence. . . . [I]t’s not the
actual weapon. . . . [I]t would just help the jurors picture what exactly we’re talking about.” The
court concluded the picture did not lack foundation and was not prejudicial, and the objection was
overruled. The State then inquired, “[Lavon], Exhibit 7, you said, is similar to the gun you saw
Mr. Bradley with and the make and model. Obviously, it’s not the exact gun; correct?” Lavon
replied, “Yes.” The court then added, “And, . . . for the record, 7 was received for demonstrative
purposes.”
Bradley contends the court erred by admitting exhibit 7 over his objection that it lacked
foundation and was unfairly prejudicial. Further, he argues that although the picture was offered
as demonstrative evidence only, such evidence must still have foundation, be relevant, and not be
prejudicial.
Bradley claims the picture lacked foundation because there was no “evidence of the source
of the picture” or “evidence of how the exhibit was created or the person who created the exhibit
testifying that [it] was a copy of a .380 handgun and where it came from.” Brief for appellant at
22, 23. The State asserts, however, that Lavon testified he was familiar with guns because he used
to be “an active gang member” and used to own guns. Also, Lavon used to own a “.380 Hi-Point,”
so he knew “exactly what it looked like” and was immediately able to recognize such a gun.
Lavon’s testimony sufficiently laid foundation as to the picture being representative of a .380
handgun.
Bradley also argues the picture was not relevant because “[e]veryone knows what a
handgun looks like so the picture did not aid the jury about what the witness was explaining” and
that the type of gun used was not part of the State’s burden of proof. Id. at 24. He contends, “The
picture of a handgun did nothing to help aid or assist the jury in understanding the evidence or
issues in [the] case.”Id. at 24-25. He further contends that because the State did not have
“possession of the handgun that the witnesses claimed to have seen used by Bradley,” id. at 24,
- 10 -
the picture of a handgun was “a thinly veiled attempt to show the jury a gun and place it in the
hands of Bradley,” id. at 25.
The State contends exhibit 7 was relevant and not unfairly prejudicial because “[a] key
witness . . . testified that he saw Bradley with a Hi Point .380 handgun, and he recognized the gun
because he owned the exact same one.” Brief for appellee at 15. The State also asserts, “[Lavon’s]
specific testimony of the make of the handgun made it beneficial to show the jury what a Hi Point
.380 handgun looks like.” Id.
To be relevant, evidence must be probative and material. State v. Hernandez, 299 Neb.
896, 911 N.W.2d 524 (2018). Evidence is probative if it has any tendency to make the existence
of a fact more or less probable than it would be without the evidence. Id. A fact is material if it is
of consequence to the determination of the case. Id. Relevancy requires only that the degree of
probativeness be something more than nothing. State v. Johnson, 290 Neb. 862, 862 N.W.2d 757
(2015).
We agree with Bradley that offering a picture of a gun that looked similar to the one Lavon
claimed to see Bradley holding on the day of the incident was not necessary to make it more
probable that Bradley was in possession of a firearm. However, the State did not offer the picture
as substantive evidence; rather, it was offered as demonstrative evidence. Therefore, we consider
whether exhibit 7 was relevant in that context. With regard to demonstrative exhibits, the Nebraska
Supreme Court has stated:
Demonstrative exhibits are broadly defined as aids “offered to illustrate or explain the
testimony of witnesses, including experts, or to present a summary or chronology of
complex or voluminous documents.” Our case law specifically defines demonstrative
exhibits as those that “clarify some issue in the case.” As these definitions highlight,
demonstrative exhibits are defined by the purpose for which they are offered at trial--to aid
or assist the jury in understanding the evidence or issues in a case. “They are relevant . . .
only because of the assistance they give to the trier in understanding other real, testimonial
and documentary evidence.” Thus, even though demonstrative exhibits may be “admitted”
into evidence during the course of the trial, they serve a purpose distinct from other exhibits
admitted for substantive and not merely demonstrative purposes.
State v. Pangborn, 286 Neb. 363, 370-71, 836 N.W.2d 790, 797-98 (2013). Significantly, “exhibits
admitted only for demonstrative purposes do not constitute substantive evidence.” Id. at 371, 836
N.W.2d at 798. Therefore,
If used improperly, demonstrative exhibits can distract the jury from considering
all of the evidence presented, causing them instead to unfairly emphasize only portions of
the evidence. . . . [D]emonstrative exhibits can be tempting vehicles for conveying
prejudicial language and assumptions or inadmissible evidence to the jury.
Furthermore, if not instructed on the limited purposes of demonstrative exhibits,
the jury may assume that demonstrative exhibits constitute primary proof of the
information contained therein, leading the jury to shirk its duty to determine the truth and
accuracy of the evidence. The jury may attribute undue weight or credibility to evidence
- 11 -
summarized or illustrated in demonstrative exhibits. . . . [D]emonstrative exhibits that are
not properly explained may ultimately confuse or mislead the jury.
Id. at 377-78, 836 N.W.2d at 802-03.
The State properly explained through its questioning of Lavon that the picture was not
depicting the “exact gun,” and the district court specifically informed the jury that it was admitting
exhibit 7 for demonstrative purposes. Although these cautionary steps were taken, we nevertheless
conclude that a picture of a gun which Lavon identified as being similar to the one Bradley was
holding did not serve to assist the trier of fact in understanding testimony or clarifying any issue
in this case. The specific make and model of the gun is not an element of any of the crimes for
which Bradley was convicted (discussed further below). The type of gun was only relevant to
connect the bullet found at the scene to the testimony of several witnesses who said that Bradley
racked the slide of the gun, thus ejecting a bullet. However seeing a picture of a gun purported to
look like the gun Bradley was holding was unnecessary to assist the jurors in considering the
relevance of that evidence. Further, when Officer Brandl was shown exhibit 7 and was asked if it
“look[ed] to be a .380-caliber,” he responded, “[i]t could be,” but that he did not “see any specific
markings on that particular one to show that it’s a .380.”
Since demonstrative exhibits are relevant “‘only because of the assistance they give to the
trier in understanding other real, testimonial and documentary evidence,’” we find the court abused
its discretion by admitting the picture as a demonstrative exhibit. Pangborn, 265 Neb. at 370, 836
N.W.2d at 798.
However, we also find that any error in admitting exhibit 7 over Bradley’s objection was
harmless. Errors, other than structural errors, which occur within the trial and sentencing process,
are subject to harmless error review. State v. Pangborn, supra. Harmless error exists when there
is some incorrect conduct by the trial court which, on review of the entire record, did not materially
influence the jury in reaching a verdict adverse to a substantial right of the defendant. Id. In a jury
trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a reasonable doubt. Id. 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, rather, whether the actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. Id.
When determining whether an alleged error is so prejudicial as to justify reversal, courts
generally consider whether the error, in light of the totality of the record, influenced the outcome
of the case. State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018). An appellate court looks to the
entire record and views the erroneously admitted evidence relative to the rest of the untainted,
relevant evidence of guilt. Id. An additional consideration is whether the improperly admitted
evidence was cumulative and tended to prove the same point as other properly admitted evidence.
Id.
When viewing the erroneously admitted picture of a gun relative to the rest of the untainted,
relevant evidence of guilt, we cannot say the admission of this exhibit influenced the outcome of
the case. Specifically, several witnesses testified that Bradley pointed a gun at the roofers. Two of
- 12 -
those witnesses, Lavon and Nathaniel, testified about Bradley racking the slide of the gun twice,
and pointing the gun at them and making threats. The 16-year-old female witnessed Bradley asking
for the gun from one of the other males present who had a gun in the waistband of his pants. She
testified that Bradley took the gun and was “waiving it” at the roofers. The female also remembered
Bradley racking the slide of the gun, and that at some point just before the police arrived, one of
the other males grabbed the gun and took off with it. Accordingly, although it was error to receive
exhibit 7 as a demonstrative exhibit, we cannot say it materially influenced the jury in reaching a
verdict. The considerable other untainted and substantive evidence relevant to Bradley’s
possession of a gun establishes that the actual guilty verdicts rendered by the jury were surely
unattributable to this particular exhibit. Thus, the error does not justify reversing Bradley’s
convictions.
6. OBJECTION TO ROOFING COMPANY OWNER’S TESTIMONY
Bradley contends the court erred by overruling his hearsay objection during the roofing
company owner’s testimony. The testimony in question was elicited by the State in its direct
examination of the owner:
[The State]: Why do you call the police when you get there?
[Witness]: ’Cause I was called and told that there was a gun and the guy that was --
[Defense Counsel]: Objection, hearsay, move to strike[.]
THE COURT: What’s it being offered for?
[The State]: Why he called police and why he’s the one who called police.
THE COURT: Overruled. He may answer.
[The State]: You can continue with your answer, sir.
[Witness]: I was called by an employee telling me that there was an argument and
a guy hit a girl and that there was a gun pulled; so I called the cops, and I showed up and
waited for the cops.
Bradley argues the testimony is hearsay and does not fall under any exception to Neb. Rev.
Stat. § 27-801 (Reissue 2016). He claims the testimony was a “thinly veiled attempt at proving up
the existence of the gun.” Brief for appellant at 27. He asserts that the testimony “was being offered
for the truth of the matter” and that “[t]he reason [the owner] was there or that he called the police
is irrelevant to the matters before the jury.” Id.
The State asserts that the testimony in question was not hearsay, as it was not offered for
“the truth of the matter asserted, but rather to explain why [the owner] called police.” Brief for
appellee at 17. We agree. Further, as the State also notes, even if the owner’s statement that his
employee told him “there was a gun pulled” was hearsay, it was cumulative to the testimony of
witnesses who testified to seeing Bradley with a gun, and was therefore harmless. As we noted
above, when determining whether an alleged error is so prejudicial as to justify reversal, we
consider whether the error, in light of the totality of the record, influenced the outcome of the case.
State v. Kidder, supra. In doing so, we can consider whether the improperly admitted evidence
was cumulative and tended to prove the same point as other properly admitted evidence. See id.
The owner’s testimony that an employee told him “there was a gun pulled” would not have
- 13 -
influenced the outcome of the case given that three other witnesses testified to actually seeing
Bradley with a gun.
7. SUFFICIENCY OF EVIDENCE
Bradley argues there was insufficient evidence to support his convictions. He was
convicted of possession of a deadly weapon by a prohibited person under Neb. Rev. Stat.
§ 28-1206(1)(a) (Reissue 2016), terroristic threats under Neb. Rev. Stat. § 28-311.01 (Reissue
2016), use of a deadly weapon to commit a felony under Neb. Rev. Stat. § 28-1205(1) (Reissue
2016), and tampering with a witness or informant under Neb. Rev. Stat. § 28-919 (Reissue 2016).
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. State v. Cotton, 299
Neb. 650, 910 N.W.2d 102 (2018). The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Id.
(a) Possession of Deadly Weapon by Prohibited Person
A person commits the offense of possession of a deadly weapon by a prohibited person if
he or she “[p]ossesses a firearm,” and “[h]as previously been convicted of a felony.”
§ 28-1206(1)(a). The parties stipulated that Bradley had previously been convicted of a felony.
Therefore, Bradley’s argument focuses on the evidence related to him being in possession of a
firearm. Bradley points out that a gun was never recovered by the police, there was conflicting
testimony as to where the bullet was found, the bullet was of the same caliber as a gun carried by
one of the roofers, and there was competing testimony as to whether Bradley ever possessed a gun
at all.
Three different witnesses, Nathaniel, Lavon, and the 16-year-old female, each testified to
seeing Bradley with a gun, and both Nathaniel and Lavon testified as to the specific type of gun
Bradley was holding. The 16-year-old witnessed Bradley requesting the gun from another male
present at the scene who had the gun in the waistband of his pants. Therefore, viewing the evidence
in the light most favorable to the prosecution, we find a rational trier of fact could have found the
essential elements of possession of a deadly weapon by a prohibited person beyond a reasonable
doubt.
(b) Terroristic Threats
Under § 28-311.01(1), “[a] person commits terroristic threats if he or she threatens to
commit any crime of violence . . . [w]ith the intent to terrorize another.” Nathaniel, Lavon, the
girlfriend, and Bradley himself testified at trial that Bradley was upset at the intervention by the
roofers and told them to mind their own business when he was arguing with his girlfriend.
Nathaniel, Lavon, and the 16-year-old female each testified that Bradley pointed a gun at the
roofers and “racked” the slide of the handgun at least once, ejecting a bullet. According to Officer
Brandl, when “someone racks a slide of a .380,” it “pulls a round from the magazine and puts it
into the chamber of the weapon.” If the weapon is fired, it ejects a spent shell out. If the slide is
- 14 -
pulled back “with a live round in, it will eject the live round out and then insert another round from
the magazine into a chamber.” This demonstrated the gun was loaded. Nathaniel testified Bradley
told them “I only need one to kill you,” and Lavon testified similarly that Bradley stated, “It only
takes one to kill you,” after ejecting a bullet. Nathaniel and other workers went to the other side of
the roof “to be on the safe side” because “[w]ell, he pulled the gun.” When asked if he thought he
might get shot at, Nathaniel responded, “Yes.”
A fact finder could have found that Bradley’s actions and statements to the roofers were a
threat to commit a crime of violence and were intended to terrorize them. Therefore, a rational trier
of fact could have found each of the elements of terroristic threats was met beyond a reasonable
doubt.
(c) Use of Deadly Weapon to Commit Felony
The facts supporting Bradley’s conviction for terroristic threats are also relevant to his
conviction for use of a deadly weapon to commit a felony. Under § 28-1205(1)(a), “[a]ny person
who uses a firearm . . . to commit any felony which may be prosecuted in a court of this state
commits the offense of use of a deadly weapon to commit a felony.” As noted above, Nathaniel
and Lavon both testified that Bradley used a gun while threatening a crime of violence, specifically
in this case, terroristic threats, which is a Class IIIA felony. See § 28-311.01(2). Therefore, a
rational trier of fact could have found that Bradley used a firearm to commit a felony, thereby
establishing the essential elements of § 28-1205 beyond a reasonable doubt.
(d) Tampering With Witness
Bradley contends that because the alleged victim of the charged domestic assault was his
girlfriend and he was found not guilty of the domestic assault, “it makes no logical sense he could
then tamper with [the girlfriend] for a crime he was acquitted of.” Brief for appellant at 28.
However, tampering with a witness does not require a successful conviction. Pursuant to § 28-919:
(1) A person commits the offense of tampering with a witness or informant if,
believing that an official proceeding or investigation of a criminal or civil matter is pending
or about to be instituted, he or she attempts to induce or otherwise cause a witness or
informant to:
(a) Testify or inform falsely;
(b) Withhold any testimony, information, document, or thing;
(c) Elude legal process summoning him or her to testify or supply evidence; or
(d) Absent himself or herself from any proceeding or investigation to which he or
she has been legally summoned.
Bradley’s girlfriend’s testimony, summarized previously, demonstrates that during
telephone calls between the girlfriend and Bradley while Bradley was in jail, Bradley made several
statements to his girlfriend about avoiding service of a subpoena, failing to appear for proceedings,
and denying that Bradley had ever “touched her.” During his testimony, Bradley denied he was
trying to influence his girlfriend during the telephone conversations, but he did admit that he asked
her to go to the prosecutor’s office “and tell them nothing happened.”
- 15 -
Bradley was arrested and taken to jail on November 15, 2016. The telephone calls,
recordings of which were entered into evidence, took place on November 16 and 17. Bradley
would have been aware “that an official proceeding or investigation of a criminal . . . matter [was]
pending or about to be instituted” when the telephone conversations took place with his girlfriend.
A rational fact finder could have found that the essential elements of § 28-919 were met beyond a
reasonable doubt.
8. EXCESSIVE SENTENCES
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 relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
Bradley assigns the court erred by sentencing him to a total of 18 to 27 years’ imprisonment
instead of probation or a lesser term of incarceration. We first set forth the statutory limits for each
conviction and then consider whether the totality of the sentences imposed was an abuse of
discretion based on the record before us and the sentencing factors to be considered by the district
court.
(a) Statutory Ranges for Each Conviction
Possession of a deadly weapon by a prohibited person is a Class ID felony for a first
offense. See § 28-1206(3)(b). A Class ID felony is punishable by a mandatory minimum of 3 years’
imprisonment up to a maximum of 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1)
(Reissue 2016). Bradley was sentenced to 5 to 7 years’ imprisonment; this sentence is within the
statutory range. Also, a person convicted of a felony for which a mandatory minimum sentence is
prescribed shall not be eligible for probation. § 28-105(4).
Terroristic threats is a Class IIIA felony. See § 28-311.01(2). A Class IIIA felony is
punishable by 0 to 3 years’ imprisonment and up to 18 months’ postrelease supervision, or a
$10,000 fine, or both. A minimum of 9 months’ postrelease supervision is required if imprisonment
is imposed. See § 28-105. Neb. Rev. Stat. § 29-2204.02(1)(a) (Reissue 2016) requires a
determinate sentence of imprisonment for a Class IIIA felony. However, § 29-2204.02(4) requires
an indeterminate sentence “[f]or any sentence of imprisonment for a Class III, IIIA, or IV felony
for an offense committed on or after August 30, 2015, imposed consecutively or concurrently with
. . . (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony.” Since Bradley’s
prison sentence on his Class IIIA felony was to be served consecutively to his prison sentences on
his Class IC and ID felonies, an indeterminate sentence was required. Bradley was given an
indeterminate sentence of 3 to 3 years’ imprisonment for this Class IIIA felony. See State v.
Vanness, 300 Neb. 159, 169, 912 N.W.2d 736, 746 (2018) (“a determinate sentence is a single
term of years and an indeterminate sentence is a minimum term and maximum term or a range of
time for which a defendant is to be incarcerated, even if the minimum and maximum number are
the same”). And although ordinarily § 29-2204.02(1)(b) requires the imposition of postrelease
supervision, no postrelease supervision was ordered in this case because any person who is
sentenced to imprisonment for a Class ID felony and sentenced concurrently or consecutively to
- 16 -
imprisonment for a Class IIIA felony, “shall not be subject to post-release supervision.”
§ 28-105(6). Bradley’s sentence for this conviction was within the statutory range for a Class IIIA
felony.
Tampering with a witness is a Class IV felony. See § 28-919(3). A Class IV felony is
punishable by 0 to 2 years’ imprisonment and 12 months’ postrelease supervision, or a $10,000
fine, or both. A minimum of 9 months’ postrelease supervision is required if imprisonment is
imposed. See § 28-105. Section 29-2204.02(1)(a) requires a determinate sentence of imprisonment
for a Class IV felony, unless probation is otherwise required pursuant to § 29-2204.02(2).
However, probation was not required here because Bradley was being sentenced to imprisonment
for other felonies. See § 29-2204.02(2)(a). Additionally, as noted above, § 29-2204.02(4) requires
an indeterminate sentence for any sentence of imprisonment for a Class IV felony for an offense
committed on or after August 30, 2015, imposed consecutively or concurrently with a sentence of
imprisonment for a Class IC or ID felony. Bradley was given an indeterminate sentence of 2 to 2
years’ imprisonment for this Class IV felony. Again, no postrelease supervision was required for
this Class IV felony since Bradley was subject to a separate sentence for a Class ID felony. See
§ 28-105(6).
Use of a deadly weapon to commit a felony is a Class 1C felony. See § 28-1205(1)(c). A
Class IC felony is punishable by a mandatory minimum of 5 years’ imprisonment up to a maximum
of 50 years’ imprisonment. See § 28-105(a). Also, the crimes defined in § 28-1205 “shall be treated
as separate and distinct offenses from the felony being committed,” and sentences imposed “shall
be consecutive to any other sentence imposed.” § 28-1205(3). Bradley was sentenced to 8 to 15
years’ imprisonment.
Bradley’s sentences were within the statutory limits for each conviction. The district court
ordered all sentences to run consecutively to each other and to any other sentence Bradley was
currently serving; credit was given for 217 days served.
(b) Sentences Not Abuse of Discretion
When imposing a sentence, the sentencing court is to 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 amount of violence involved in the commission of the crime. State
v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). Generally, it is within a trial court’s discretion
to direct that sentences imposed for separate crimes be served either concurrently or consecutively.
Id. This is so even when offenses carry a mandatory minimum sentence, unless the statute requires
that consecutive sentences be imposed. Id.
The appropriateness of a sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696
(2018).
Bradley’s presentence investigation (PSI) included a Level of Service/Case Management
Inventory (LS/CMI) to “determine the degree of risk that [he] presents to the community and risk
to recidivate.” The PSI reveals Bradley has a high school education and was employed doing odd
- 17 -
jobs in the fall of 2016, and he does not appear to have any major drug or alcohol issues. Bradley
had a number of charges filed against him as a juvenile from 2011 to 2013 (terroristic threats, theft,
disturbing the peace, trespass, third degree assault), with dispositions involving probation,
intensive supervised probation, and placement at the youth facility in Kearney, Nebraska. As an
adult, he has been convicted of terroristic threats (2015, 15-30 months’ jail), disturbing the peace
(2015, fine), and two convictions each for possession of marijuana and possession of drug
paraphernalia (2016, fines). The PSI indicates Bradley’s “overall criminal history reflects a poor
or indifferent attitude towards laws and authority figures.” Also, Bradley “has had major
misconduct reports during his stay at jail,” and he was “involved in fights when he was at the
Youth Correctional Facility.” Bradley scored overall as a “high risk” to reoffend on the LS/CMI.
At the sentencing hearing, Bradley’s counsel acknowledged probation was not an option
because of the nature of the offenses, but pointed out that Bradley responded well to supervision
as a juvenile. Defense counsel also asked the court to consider that Bradley “has a family that cares
for him,” and that Bradley has an infant daughter. Bradley personally told the court that he “was
very honest” when he testified, and “even though it didn’t come out in [his] favor at the end of the
day,” he had “owned up to what [he] did and what [he] did wrong.” Bradley said that he has tried
to correct his behaviors and that he is not a threat to the community. Bradley stated, “I don’t go
out anymore and look to hurt nobody. That’s not how I was raised, and that’s not who I am.”
The State expressed concern for the safety of the community and the witnesses in the case.
Law enforcement had been monitoring Bradley’s communications and it appeared Bradley was
“still trying to influence witnesses in this case, despite being convicted of witness tampering.” The
State also pointed out that Bradley’s prior felony conviction for robbery involved pointing a gun
at someone. And in this case, “he not only possessed a firearm, but he used the firearm to threaten
and terrorize innocent bystanders who were merely concerned about the safety of [Bradley’s]
girlfriend.”
The court noted Bradley’s past criminal history, dating back to when Bradley was 14 years
of age. The court stated that Bradley had an “assaultive and violent nature” and that “[e]xtensive
amounts of resources have already been applied to [him] and [his] situation, apparently to no avail,
at least to this point.” The court noted that “it’s true this is not the way you were raised” and that
“[m]aybe it was the people [Bradley] decided to associate [himself] with in the beginning.”
However, the court took into consideration the serious nature and violence associated with his
convictions, and stated that it could not “ignore the serious threat to the community that [Bradley]
present[s].”
Bradley argues on appeal that the court “failed to consider the mitigating criteria that were
apparent from the record and the Presentence Investigation Report.” Brief for appellant at 29. He
argues the court “failed to take into account that his youth may have been a cause for rash decision
making and motivation for these offenses” and that he had “the support of his family to assist him
with whatever sentence he was given.” Id. at 33. He also asserts his juvenile probation reports
show that Bradley “responded well to probation supervision” and that the court should have
considered the effect the sentence will have on Bradley’s daughter. Id.
- 18 -
We find nothing in the record to indicate the court failed to consider any mitigating criteria.
Upon our review of the record and consideration of the relevant sentencing factors as applied to
Bradley, we cannot say the district court abused its discretion in the sentences ordered.
VI. CONCLUSION
For the reasons set forth above, we affirm Bradley’s convictions and sentences.
AFFIRMED.
- 19 -