State v. Rowe ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ROWE
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.
WILLIAM A. ROWE, APPELLANT.
Filed October 10, 2017. No. A-16-1050.
Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
INBODY, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
I. INTRODUCTION
William A. Rowe appeals his convictions and sentences in the district court for Sarpy
County for attempted robbery, terroristic threats, use of a firearm to commit a felony, and theft by
shoplifting. On appeal, he asserts the prosecutor committed misconduct, there was insufficient
evidence to support his convictions, and the sentences imposed were excessive. He further assigns
several court errors with regard to objections, jury instructions, and motions. For the reasons that
follow, we affirm.
II. BACKGROUND
On October 19, 2015, Rowe was charged by information in the district court for Sarpy
County with four criminal counts: Count I, robbery, a Class II felony; Count II, terroristic threats,
a Class IV felony; Count III, use of a firearm to commit a felony, a class IC felony; and, Count IV,
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aiding and abetting theft by shoplifting, $500 dollars or less. The amended information denotes
Count IV is a Class IV felony, when, in actuality it was a Class II misdemeanor, this was corrected
at sentencing. The original information was amended to reduce Count I to attempted robbery, a
Class IIA felony. Rowe entered pleas of not guilty to all charges.
Trial began on August 9, 2016. Milea Ixta testified that on September 5, 2015, she was
smoking methamphetamine with her boyfriend, Rowe. Rowe told her that he needed to get some
concrete to complete a project at his mother’s home on Jackson Street in Bellevue. Rowe asked
Ixta if she would steal the concrete, and she agreed to try. Rowe drove Ixta to Menard’s in Ralston
in his red Land Rover. Ixta entered the store but was unable to steal the concrete because she could
not lift the bags. She looked for something she could shoplift for Rowe to sell to get the money he
needed for the concrete. She shoplifted two security cameras.
Ixta returned to Rowe’s car and showed him the cameras. He thought he could sell them,
but also considered using them in his home. He asked Ixta to steal more cameras and she agreed.
After leaving Menard’s, Rowe and Ixta drove to a friend’s house to buy methamphetamine. Ixta
testified that Rowe’s shirt rode up as he reached for money and he exposed a handgun tucked into
his waistband. Ixta said “I didn’t know that you had a gun with you,” and Rowe replied, that it was
“the .380.” Ixta knew Rowe referred to a Kal-Tec .380 automatic handgun because he had shown
it to her in the past.
As they drove to the Bellevue Menard’s, Rowe and Ixta discussed the plan to enter the
store separately. Rowe was going to buy cement while she shoplifted more cameras and then they
planned to meet back at the Land Rover. Rowe parked the Land Rover and he and Ixta entered the
store. Ixta carried a large purse and walked to the aisle where the security cameras were displayed.
Two loss prevention officers, David Jarvinen and Zach Baxter, monitored various areas of
the store on closed circuit TVs in the security office. They observed Ixta remove a security camera
from the shelf, and then put it back on the shelf. Then she looked around, removed two security
cameras from the shelf, and left the aisle. Her behavior, the large purse, and an empty bag she
acquired inside of the store led Jarvinen to suspect Ixta may try to steal the cameras. The cameras
were known to be “high theft items,” which are expensive and frequently shoplifted.
As Ixta walked to the front of the store, she placed a camera inside the black bag and one
in her purse Jarvinen monitored Ixta from the security office while Baxter followed Ixta on foot.
Ixta also placed two bags of beef jerky inside the black bag. Ixta pushed a cart containing several
items to the cash registers as though she intended to pay for the items. She walked away from the
cart without paying and walked toward the exit. Jarvinen called Baxter and told him to wait outside
for her.
Baxter positioned himself outside of the exit and waited for Ixta. Baxter walked up to her,
identified himself, and asked her to accompany him back into the store to discuss the items she
had stolen. Ixta attempted to push past Baxter, who struggled to detain her. Baxter and Jarvinen
grabbed Ixta’s arms and wrestled her to her knees. They attempted to place her in handcuffs, but
she broke free and struck Baxter in the back of the head with the handcuffs.
Ixta began yelling for help. Jarvinen saw a man in a red Land Rover SUV pull up to the
door and stop. Ixta told Jarvinen and Baxter that Rowe was her boyfriend and that he had a gun.
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Jarvinen instructed Baxter to approach Rowe to try to calm him down. As Baxter walked toward
the Land Rover, Rowe exited the driver’s side door and walked to the front of the car.
Ixta began yelling at Rowe to “show them the gun.” Ixta, Baxter, and Jarvinen testified that
Rowe raised his shirt and exposed a black handle tucked into the left side of his waistband for
approximately 5 to 10 seconds without saying a word. Upon seeing this, Baxter yelled “gun” and
backed away from Rowe. Jarvinen released Ixta and raised his hands in the air. Ixta put the bags
on the ground and abandoned the stolen property. She and Rowe entered the Land Rover and fled.
Baxter noted the license plate number and called the police.
Both loss prevention officers testified that they are familiar with guns and believed the
object in Rowe’s waistband to be a gun. Jarvinen testified that he felt unsafe and understood
Rowe’s action, lifting his shirt to show that he had a gun, to be a threat. At trial, Jarvinen and
Baxter identified Rowe as the man who assisted Ixta.
Ixta testified that as they drove away from Menard’s Rowe was upset and cussing. He said
he needed to go to his mom’s house. When they were near his mother’s home, they saw a police
car parked in front so they drove away. They discarded the methamphetamine they had purchased
that day and discussed hiding. Rowe stopped at Gilbert Park in Bellevue to let Ixta out of the car.
She ran to a nearby house and hid underneath the porch.
At approximately 5:28 p.m. Officers Justin Pestel and Mike Brazda of the Bellevue Police
Department were dispatched to Jackson Street to investigate an intrusion alarm. En route to the
house, they received a second dispatch regarding a robbery at Menard’s. They learned that the red
Land Rover involved in the robbery was registered to a person living at the same address on
Jackson Street, and they set up surveillance at the house. Officer Pestel observed the car traveling
toward them and attempted to follow it. He momentarily lost sight of the car, but eventually found
it parked on a dead end road.
Rowe was ordered from the vehicle and taken into custody. No gun was found on Rowe’s
person or inside of his vehicle. The two security cameras Ixta took from Menard’s in Ralston were
found in the back seat of Rowe’s car. When officer Brazda questioned Rowe he provided a false
name for Ixta and said he had encountered her at a gas station and agreed to give her a ride to
Menard’s. He said he helped the woman escape from two men who had accosted her at Menard’s.
Brazda noted that Rowe was “extremely nervous” throughout the contact and appeared to be lying.
At trial Pestel and Brazda identified Rowe as the man driving the red Land Rover on September
8, 2015.
Ixta was apprehended by the police and agreed to cooperate with the State. Her agreements
were admitted into evidence and contain a provision noting that the State agreed to inform the
judge at sentencing of the nature and extent of Ixta’s cooperation.
Following the presentation of evidence, a jury instruction conference was held. Rowe
objected to multiple jury instructions, which will be discussed in more detail below. Rowe
requested an instruction regarding self-defense, defense of others, and choice of evils. The court
declined to provide these instructions, finding they were not supported by the evidence.
During closing arguments the prosecutor made several statements which Rowe alleges, on
appeal, amounted to prosecutorial misconduct. Toward the end of the initial summation, the
prosecutor stated:
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Officer Brazda. We talked for about 40 minutes about felony traffic stops. What do
felony traffic stops have to do with attempted robbery, shoplifting, terroristic threats, and
use of a weapon?
It’s called a red herring. It’s called look over here. Don’t look at the facts of what
we’re talking about. We spent 45 minutes talking about do you have your gun up? What
does it matter how Officer Brazda’s assault rifle was carried back to the car and placed in
the cruiser?
It doesn’t. It’s a red herring. Look over here. We’re dancing over here. Don’t look
at the evidence. Don’t look at any of it. Don’t look at it over here because we are going to
talk about a felony traffic stop and what the protocol is, and all that, because it doesn’t
matter, because it’s look over here, not at the evidence.
During his closing argument, Rowe’s counsel attacked the credibility of Ixta. He argued
that upon seeing Ixta being accosted by two men he lifted his shirt, which may have been a reckless
decision, but did not amount to terroristic threat. He argued that he did not know they were loss
prevention officers, and he observed Ixta being accosted by two unknown men, as she screamed
for help.
On rebuttal, the prosecutor cited several facts corroborating Ixta’s testimony and argued
that Ixta had no motivation to lie. The prosecutor urged the jury to study the proffer agreements
and note that Ixta would be sentenced by the same judge as Rowe. Rowe objected and the court
overruled the objection. The prosecutor continued, stating that Ixta admitted to making mistakes,
but was there to testify about “what actually happened.”
The prosecutor urged the jury to use common sense when evaluating the evidence. The
prosecutor referenced the evidence regarding Rowe’s use of a firearm and stated, “There is no
self-defense instruction because he wasn’t doing anything in self-defense.” Rowe objected to this
statement and moved to strike it. The court sustained the objection and asked the prosecutor to
move on. Rowe did not ask the court to provide curative instructions or move for a mistrial at any
time during closing arguments.
The case was submitted to the jury, and the jury returned guilty verdicts on each of the four
counts. The court accepted the jury’s verdicts and adjudged Rowe guilty of the offenses. The court
ordered a presentence investigation and scheduled a sentencing hearing.
On August 19, 2016, Rowe filed a motion for new trial. A hearing was held on his motion
on September 19. Rowe argued the prosecutor committed misconduct during rebuttal by arguing
facts not in evidence, and pointed out that no self-defense instruction would be given. Rowe
renewed his objections to the jury instructions and verdict form and challenged the sufficiency of
the evidence to support his convictions. The motion was overruled.
A sentencing hearing was held on October 17, 2016. The State advised the court that the
shoplifting conviction was a Class II misdemeanor rather than a Class IV felony. Rowe was
sentenced to: 1 to 2 years’ imprisonment for Count I; 12 months’ imprisonment on Count II; 5 to
5 years’ imprisonment on Count III; and 1 month imprisonment on Count IV. The district court
ordered the sentences imposed on Counts I, II, and IV, to run concurrently with one another, but
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consecutively to the sentence imposed in Count III. Rowe received seven days of credit for time
served. Rowe timely appeals.
III. ASSIGNMENTS OF ERROR
Rowe asserts the prosecutor made improper comments during closing argument that
deprived him of his right to a fair trial. Rowe asserts that the district court erred by not responding
properly to objections during closing statement, not providing appropriate or adequate jury
instructions, failing to direct a verdict in his favor, and overruling his motion for new trial. He
asserts the evidence was insufficient to support his convictions, and that the sentences imposed
were excessive.
IV. STANDARD OF REVIEW
An alleged error must be both specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate court. State v. Ash, 293 Neb. 583, 878
N.W.2d 569 (2016).
When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal,
we will review the record only for plain error. State v. Custer, 292 Neb. 88, 871 N.W.2d 243
(2015).
An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion of the trial court. State v. McSwine, 292 Neb. 565, 873 N.W.2d 405
(2016).
Whether jury instructions given by a trial court are correct is a question of law. When
dispositive issues on appeal present questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the court below. State v. Martinez, 295
Neb. 1, 886 N.W.2d 256 (2016).
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 elements of the crime beyond a reasonable doubt. State
v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016).
V. ANALYSIS
1. PROSECUTORIAL MISCONDUCT
Rowe asserts the prosecutor made prejudicial statements during his closing arguments. He
concedes that his counsel did not object to the prosecutor’s initial closing statement. His counsel
did object to two further statements the prosecutor made during rebuttal.
Generally prosecutorial misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may undermine a defendant’s right to a
fair trial. State v. Dubray, 289 Neb 208, 854 N.W.2d 584 (2014). Generally, in assessing
allegations of prosecutorial misconduct in closing arguments, a court first determines whether the
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prosecutor’s remarks were improper. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013). It is
then necessary to determine the extent to which the improper remarks had a prejudicial effect on
the defendant’s right to a fair trial. Id. Prosecutors are charged with the duty to conduct criminal
trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not
to inflame the prejudices or excite the passions of the jury against the accused. Id. A prosecutor’s
conduct that does not mislead and unduly influence the jury does not constitute misconduct. State
v. Dubray, supra.
(a) Objection Based Upon Prosecutorial Misconduct
During the rebuttal portion of the prosecution’s closing argument, the State argued that Ixta
was credible because she did not deny her history of drug use and criminal activity. The
prosecution referred to the proffer agreements which showed that Ixta would be sentenced in front
of the same judge and that she agreed to cooperate in Rowe’s prosecution in exchange for
consideration of the nature and extent of her cooperation when the time came for her sentencing.
Rowe asserts the prosecution improperly emphasized Ixta’s agreements with the State, arguing
that these statements amounted to “improper vouching” because it portrayed the court as a partner
in the prosecutorial enterprise. Brief for appellant at 23.
The record shows that Rowe objected to the prosecutor’s remarks, and his objection was
overruled. However, he did not move for a mistrial. When a party has knowledge during trial of
irregularity or misconduct, the party must timely assert his or her right to a mistrial. State v.
Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015). Rowe has waived any error resulting from the
State’s comments due to his failure to move for mistrial based on prosecutorial misconduct.
At another point in the closing statement, the prosecution stated there would be “no
self-defense instruction because [Rowe] wasn’t doing anything in self-defense.” Rowe’s counsel
said “Judge, I would object to that. Move to strike that.” The court replied “All right. Sustained.
Move on to your next point.” Counsel did not move for a mistrial. Again, we find Rowe has waived
any error based upon prosecutorial misconduct which resulted from the State’s comment. See State
v. Stricklin, supra. See, also, State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997). His argument
regarding the court’s failure to explicitly strike the prosecutor’s argument will be addressed in the
jury instructions portion of our analysis.
An appellate court always reserves the right to note plain error which was not complained
of at trial or on appeal. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017). Plain error exists
where there is error, plainly evident from the record but not complained of at trial, that prejudicially
affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would
cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the
judicial process. State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016). However, because both of
these claims of prosecutorial misconduct were raised and considered by the trial court, we cannot
find plain error. See id. (Where an issue is raised and complained of at trial, it cannot be the basis
of a finding of plain error on appeal.)
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(b) No Objection to “Red Herring” Comments
Rowe contends that during the State’s initial summation, the prosecutor’s repeated use of
the term “red herring” was an attack on the personal integrity of Rowe’s attorney. He equates these
statements to the comments made by the prosecutor in State v. Barfield, 272 Neb. 502, 723 N.W.2d
303 (2006) in which the prosecutor insinuated that all defense lawyers are liars.
The record shows that Rowe’s trial counsel did not object to the use of the term “red
herring” during closing or move for a mistrial. In order to preserve, as a ground of appeal, an
opponent’s misconduct during closing argument, the aggrieved party must have objected to
improper remarks no later than the conclusion of the argument. State v. Watt, supra. Thus, Rowe
has waived any complaint about prosecutorial conduct during the initial summation, and we cannot
consider the issue unless we find that it constitutes plain error. See id.
An appellate court may find plain error on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s
substantial right and, if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Dubray, supra. Generally we will find plain error only
when a miscarriage of justice would otherwise occur. Id.
When a prosecutor’s comments result on reasonably drawn inferences from the evidence,
he or she is permitted to present a spirited summation that a defense theory is illogical or
unsupported by the evidence and to highlight the relative believability of witnesses for the State
and the defense. See State v. Dubray, supra. These types of comments are a major purpose of
summation, and they are distinguishable from attacking a defense counsel’s personal character or
stating a personal opinion about the character of a defendant or witness. Id.
In State v. Barfield, the Nebraska Supreme Court found that the evidence was not
overwhelming and the credibility of the witnesses was a key factor. Accordingly, it found “‘the
implication that defense counsel was a liar, and by extension was willing to suborn perjury, was
highly prejudicial when viewed in that context.’” See State v. Nolan, 292 Neb. 118, 134, 870
N.W.2d 806, 821 (2015) (quoting State v. Barfield, supra).
In State v. Nolan, the Nebraska Supreme Court stated that a distinction exists between
arguing that a defense strategy is intended to distract jurors from what the evidence shows, which
is not misconduct, and arguing that a defense counsel is deceitful, which is misconduct. In State v.
Nolan, prosecutors made statements during closing arguments that the defense counsel would use
“smoke screens and mirrors” to pick apart inconsistencies in the testimony of each witness. The
Court found that the prosecutor’s statements, when read in context, did not assert that defense
counsel personally or defense lawyers generally are deceitful, or that it was the job of a prosecutor
to mislead the jury. Accordingly, the Court found the remarks were not improper and did not
amount to prosecutorial misconduct.
From our review of the record in this case, it appears the prosecutor’s use of the term “red
herring” did not imply that defense counsel was being deceitful. It was apparently made with the
intention of pointing out that some of the subjects on which Rowe’s defense counsel focused
during trial were not relevant to whether Rowe committed the charged offenses. The prosecutor’s
comments were similar to the comments in State v. Nolan, supra, and, when read in context, the
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prosecutor’s “red herring” statements did not suggest that defense counsel was deceitful. Therefore
we find the remarks were not improper and we need not consider whether the comments prejudiced
Rowe’s right to a fair trial. Because there was no prosecutorial misconduct and no plain error, we
reject this assignment of error.
2. ALLEGED COURT ERROR
(a) Court’s Response to Objections During Closing Arguments
(i) First Objection: Improper Vouching
Rowe asserts but does not argue that the court erred in overruling his objection to the
prosecution’s statements regarding Ixta’s agreement with the State to cooperate in Rowe’s
prosecution. An alleged error must be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an appellate court. State v. Ash, supra.
Because Rowe presents no argument regarding the error he assigns, the issue is not properly
presented for appellate review and we do not address it further. Id.
In arguing his prosecutorial misconduct claim, he states that “the fact that the jury heard
the judge overrule a valid objection was detrimental to the defense.” Brief for appellant at 23.
Rowe did not properly address the court’s ruling on his “valid objection” in his brief and as
previously discussed, he waived the issue of prosecutorial misconduct on this basis by failing to
move for a mistrial. Without a valid challenge on appeal to the court’s ruling on his objection, we
cannot find that Rowe was prejudiced by the court’s alleged failure.
(ii) Failure to Admonish Jury After Objection During Closing
Rowe argues that the trial judge “neglected to strike” an improper statement immediately
after it was uttered and the objection to the statement was sustained.
As previously discussed, after the prosecutor’s remark regarding the absence of a
self-defense instruction, Rowe objected and moved to strike. The court replied “All right.
Sustained. Move on to your next point.” Although it appears that the court’s statement was
intended to respond to both the objection and the motion to strike, the court did not make a specific
direction to strike the comment. Nonetheless, the Nebraska Supreme Court has “long held that a
party who fails to insist upon a ruling to a proffered objection waives that objection.” State v.
Dean, 270 Neb. 972, 708 N.W.2d 640 (2006). Rowe allowed the proceedings to continue without
insisting upon a clarification by the court or a specific ruling on the motion to strike, thus this
argument is waived.
(b) Jury Instructions
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant. State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016). All the jury
instructions must be read together, and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the pleadings and the evidence, there is
no prejudicial error necessitating reversal. Id.
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(i) Instruction No. 1
As previously discussed, Rowe objected to statements made by the prosecution in closing
argument with regard to the absence of a self-defense instruction. Instruction No. 1 provided that
the attorneys for the parties had a duty to represent their respective interests and to draw legitimate
deductions and inferences from the evidence. Further, Instruction No. 16 provided that the
statements and arguments of the lawyers for the State and the Defendant were not evidence.
On appeal, Rowe asserts instruction No. 1 was inadequate to cure the prosecutor’s remarks
because it “did not mention the specific statements of the prosecutor” and was “not given
immediately after the damage was done.” Brief for appellant at 25. Rowe also asserts the court
erred by not providing a curative instruction after his objection was sustained. He concedes that
he did not request a curative instruction. The record shows that he did not move for a mistrial,
object to Instruction No. 1 because it was not sufficiently specific, or offer a more specific
instruction. Nonetheless, he argues the court, sua sponte, “should have given a specific written
instruction that the jury disregard the comments.” Brief for appellant at 25.
The purpose of the instruction conference is to give the trial court an opportunity to correct
any errors made by it. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). Consequently, a
party who does not request a desired jury instruction cannot complain on appeal about incomplete
instructions. Id. See, also, State v. Smith, 19 Neb. Ct. App. 708, 811 N.W.2d 720 (2012).
It is the duty of the trial court to instruct the jury on issues presented by the pleadings and
supported by the evidence. In applying that principle, the Nebraska Supreme Court has established
that the “failure to object to instructions after they have been submitted to counsel for review or to
offer more specific instructions if counsel feels the court-tendered instructions are not sufficiently
specific will preclude raising an objection on appeal, unless there is a plain error indicative of a
probable miscarriage of justice.” State v. Mowell, 267 Neb. at 93, 672 N.W.2d at 398 (quoting
State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999)). Thus, in order to preserve the alleged
error, Rowe was required to challenge the instruction and he did not do so, thus this assignment of
error is waived.
However, an appellate court always reserves the right to note plain error which was not
complained of at trial or on appeal. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017). Upon
our review, we find none. This assignment of error is without merit.
(ii) Instruction No. 3
At trial, Rowe objected to the elements instruction for attempted robbery, arguing that the
court altered the wording of the pattern instruction provided in NJI2d. The district court overruled
the objection noting that the instruction set forth all of the elements of the alleged offense in a way
that was easier to understand, and the change did not affect the overall meaning of the instruction.
On appeal, Rowe asserts the court erred in giving instruction No. 3 over his objection. He
argues the pattern instruction should have been given verbatim so as not to confuse the jury. Rowe
did not allege that he was prejudiced, he simply argues “when an approved pattern instruction is
available it should be followed. In this case NJI2d. Crim. 4.5 should have been given word for
word and line for line so as not to confuse the jury.” Brief for appellant at 28.
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The general rule is that whenever applicable, the Nebraska Jury Instructions are to be used.
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). However, NJI2d. 4.5 provides
definitions for terms used in the robbery statute, Neb. Rev. Stat. § 28-324, it does not provide the
elements of robbery.
Section 28-324(1) provides that “A person commits robbery if, with the intent to steal, he
forcibly and by violence, or by putting in fear, takes from the person of another any money or
personal property of any value whatever.” Instruction No. 3 provided, in part, that “Robbery is
committed when a person with the intent to steal takes from the person of another any money or
personal property of any value whatever (a) forcibly and by violence, or (b) by putting a person in
fear.” Although it is not stated in exactly the same way, the court described “robbery” using the
same terms used in the statute. The court’s instruction did not redefine of the offense of robbery
or lessen the State’s burden of proof.
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant. Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014). When reading
all of the jury instructions together, they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence. We find that giving instruction No.
3 did not result in prejudicial error necessitating reversal.
(iii) Instruction No. 8
Rowe objected to jury instruction No. 8, which provides:
You can only find the Defendant, William A. Rowe, guilty of Count 3 (use of a
firearm to commit a felony) if you have found him guilty of either Count 1 (attempted
robbery) or Count 2 (terroristic threats). If you have found the Defendant not guilty of both
Counts 1 and 2, you cannot find him guilty of Count 3.
As I instructed you in Instruction No. 5, terroristic threats can be committed either
intentionally or recklessly. You need not agree unanimously whether the crime of
terroristic threats was committed intentionally or recklessly in order to find the Defendant
guilty of terroristic threats so long as you unanimously agree that he committed the crime
either intentionally or recklessly. However, in order for you to find the Defendant guilty of
use of a firearm to commit a felony based on a finding that the Defendant committed the
crime of terroristic threats, you must unanimously agree that the crime of terroristic threats
was committed intentionally, not recklessly.
Rowe also objected to how instruction No. 8 fit into the verdict form. On appeal, he asserts
the last sentence of the instruction was confusing to the jury, and the jury should have been required
to “articulate whether the terroristic threat was committed recklessly or intentionally or
knowingly.” Brief for appellant at 26 (emphasis in original). He asserts the court’s failure to
properly instruct the jury constituted reversible error because the conviction for “use of a firearm”
was contingent upon a finding that he intentionally committed the crime of terroristic threats. Brief
for appellant at 26.
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The first portion of instruction No. 8 provides that Rowe’s conviction for use of a firearm
to commit a felony could be based upon either the crime of terroristic threats or the crime of
attempted robbery. The jury found Rowe was guilty of attempted robbery, which, in itself is
sufficient to support the conviction for use of a firearm to commit a felony. As a result, the jury’s
determination of Rowe’s intent with regard to terroristic threats is inconsequential. Rowe cannot
meet his burden of proof to show that he was prejudiced by this alleged error. See State v.
Hinrichsen, supra.
(c) Failure to Instruct Jury
(i) Character Evidence Pursuant to § 27-404
Rowe asserts the court erred by failing to give an instruction to the jury regarding the
State’s use of character evidence, as defined by Neb. Rev. Stat. § 27-404. After the jury was
chosen, but prior to the presentation of evidence, Rowe raised concerns regarding the presentation
of evidence under Neb. Rev. Stat. § 27-404 and objected that the State had not put him on notice.
Rowe’s counsel specifically referred to potential testimony regarding the “alleged shoplifting
incident that occurred in Ralston, Nebraska,” on September 8, 2015 and “potential drug use on the
day in question.”
The court noted that the State did not make a “404 motion” and the defense did not file a
motion in limine. The issue was raised for the first time, in chambers, on the day before trial. The
court advised that Rowe could reassert this objection at trial if any such evidence was presented.
The court further stated that there could be no continuing objection on this subject until an
objection was made during trial.
Even assuming that evidence to which Rowe refers was presented at trial pursuant to
§ 27-404, the defense made no objection on this basis during trial and did not request a limiting
instruction. The failure to make a timely objection waives the right to assert prejudicial error on
appeal. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). Further, the Nebraska Supreme
Court has held that when defense counsel does not request a limiting instruction, the defense
waives any error in the failure of the court to give one. See State v. Oldson, 293 Neb. 718, 884
N.W.2d 10 (2016). Thus, we find the defense waived this assignment of error.
(ii) Accomplice Instruction
Rowe asserts the district court erred by failing to give an accomplice instruction regarding
Ixta’s testimony, because she was a key witness for the State and the prosecutor vouched for her
credibility. Instruction No. 17 states that the members of the jury are the sole judges of the
credibility of the witnesses and the factors they may consider in determining the weight to be given
to their testimony.
The record does not show that a specific instruction regarding accomplice testimony was
made, or that Rowe requested such an instruction. It is not reversible error for a trial court to fail
to give a specific instruction on credibility of the testimony of an accomplice where such an
instruction is not requested. State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986). This
assignment of error is without merit.
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(d) Motion for Directed Verdict
Rowe asserts the district court erred in denying his motion for directed verdict because:
it never stated the following specific language: “In a criminal case a court can direct a
verdict only when (1) there is a complete failure of evidence to establish an essential
element of the crime charged, or (2) evidence is so doubtful in character, lacking probative
value, that a finding of guilt based on such evidence cannot be sustained.”
Brief for appellant at 31. Rowe appears to argue that the court should have recited these exact
words at the time the motion for directed verdict was denied. He cites no authority for this
assertion, and does not address why the decision of the court was incorrect.
An alleged error must be both specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate court. State v. Ash, supra. Because
Rowe presents no argument regarding the error he assigns, the issue is not properly presented for
appellate review and we do not address it further. Id.
(e) Motion for New Trial
Rowe asserts the statutory procedure was not followed to address his motion for new trial.
He argues:
Under Neb. Rev. Stat. 29-2102(2) “the court shall cause notice of the motion to be served
on the prosecuting attorney, grant a hearing on the motion, and determine the issues and
make findings of fact and conclusions of law with respect thereto.” Since this statutory
requirement was not followed the court erred.
Brief for appellant at 32 (emphasis in original).
Rowe made no additional assertions regarding the court’s alleged error. The claim is not
supported by the evidence which shows a hearing was held on Rowe’s motion, both parties were
heard, and the court made specific findings, explaining the reasons for overruling Rowe’s motion
for new trial. Rowe does not present a sufficient argument to support the error he assigned,
therefore we decline to address it further. See State v. Ash, supra.
3. SUFFICIENCY OF EVIDENCE
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. Pester, 294 Neb. 995, 885 N.W.2d 713
(2016). 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.
Because Rowe does not challenge the sufficiency of the evidence to support his convictions
for aiding and abetting shoplifting and attempted robbery, we will only address the sufficiency of
the evidence to support his convictions for terroristic threats and use of a deadly weapon to commit
a felony. Pursuant to § 28-1205, a person who uses a firearm, a knife, brass or iron knuckles, or
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any other deadly weapon 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. By not challenging the
sufficiency of the evidence to support his conviction for attempted robbery, he concedes that he
committed at least one felony.
Rowe asserts the evidence was insufficient to support his conviction for use of a firearm to
commit a felony. He argues that the simple act of lifting a shirt to expose a handgun tucked into a
waistband does not constitute “use” within the meaning of Neb. Rev. Stat. § 28-1205 (Reissue
2016). Further, he argues that there was no objective evidence that Rowe “even had a gun.” Brief
for appellant at 33-34.
The evidence shows that Rowe did not remove a gun from his waistband, and that no gun
was found on his person or in his immediate surroundings on September 8, 2015. Even so, multiple
witnesses testified that Rowe acknowledged or demonstrated that he was in possession of a gun
on that day. Ixta testified that earlier in the day on September 8, she saw the handle of a gun tucked
into the waistband of Rowe’s pants, and she questioned him about it. She said that he told her it
was “the .380,” referring to a weapon he had shown her before. Ixta testified that when she was
detained by loss prevention officers at Menard’s, she yelled for Rowe to “show them the gun,” and
that he reacted by lifting his shirt to display it. Jarvinen and Baxter testified that they were present
for this exchange and that they personally observed as Rowe lifted his shirt to expose the handle
of an object tucked into his waistband that appeared to be a gun. They testified that they were
familiar with, and personally owned guns, and that they believed what they saw was, in fact, a gun.
The Nebraska Supreme Court has determined that the term “use” requires more than mere
possession, for purposes of § 28-1205(1). State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).
In State v. Garza, the Nebraska Supreme Court referred to the reasoning of the United States
Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995),
in which the United States Supreme Court held that “use” requires a firearm to be “actively
employed in a way that makes it an operative factor in the offense, such as by brandishing,
displaying, striking with, or firing or attempting to fire the firearm.” State v. Garza, supra.
Viewing the evidence in the light most favorable to the prosecution, the evidence is
sufficient for any rational trier of fact to have found, beyond a reasonable doubt, that Rowe
brandished or displayed the weapon in order to further the robbery attempt, or to scare Jarvinen
and Baxter into releasing Ixta so that she could escape. Thus, he could be found to have “used” a
weapon to commit a felony.
Rowe also argues that he never said anything to the loss prevention officers and he never
pointed anything at them, therefore he could not have committed the crime of terroristic threats.
Brief for appellant at 35-36.
Pursuant to § 28-311.01:
(1) A person commits terroristic threats if he or she threatens to commit any crime
of violence:
(a) With the intent to terrorize another;
(b) With the intent of causing the evacuation of a building, place of assembly, or
facility of public transportation; or
(c) In reckless disregard of the risk of causing such terror or evacuation.
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For purposes of § 28-311.01, a threat may be written, oral, physical, or any combination thereof.
State v. Curlile, 11 Neb. Ct. App. 52, 642 N.W.2d 517 (2002). Terroristic threats are largely
determined by the context of the interaction between the involved people. See Id. The evidence
shows that after Ixta yelled for Rowe to “show them the gun” he reacted by lifting his shirt, facing
in the direction of the loss prevention officers, to display the handle of an object which had been
tucked in his waistband. Upon seeing this, Baxter yelled “gun” and backed away from Rowe.
Jarvinen released Ixta and raised his hands in the air. Jarvinen testified that he felt unsafe. 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 of terroristic threats beyond a reasonable doubt.
4. EXCESSIVE SENTENCE
Rowe asserts that “at most” he should have been sentenced only for a conviction on
Count IV, aiding and abetting theft by shoplifting, and “even that sentence is problematic in that
the jury was not provided with a jury form to fix the monetary amount of the shoplifting. Brief for
appellant at 36. He asserts the property had no value and the State failed to meet its burden of proof
on Count IV. This appears to be additional argument with regard to the jury instructions given and
the sufficiency of the evidence to support his conviction. He makes no claims or assertions with
regard to the severity of the sentences imposed. An alleged error must be both specifically assigned
and specifically argued. See State v. Ash, supra. His claim that his sentence is excessive is not
properly presented for appellate review and we do not address it further.
To the extent that this portion of his argument asserts the evidence was insufficient to
support his conviction on Count IV, we find his argument is without merit. The assertion that the
property had no value is not supported by the evidence, as the State presented testimony and
exhibits showing that the items had some intrinsic value that translated into nominal market value
at the time of the offense. See State v. Connor, 16 Neb. Ct. App. 871, 754 N.W.2d 774 (2008). This
argument is without merit.
VI. CONCLUSION
Upon our review, we find the comments made by the prosecution during closing argument
did not rise to the level of misconduct and we find no plain error which would warrant reversal.
We find the court properly instructed the jury, and there was sufficient evidence to support Rowe’s
convictions. The remainder of Rowe’s claims were either waived, without merit, or not properly
presented to this court for review. For the foregoing reasons, we affirm Rowe’s convictions and
sentences.
AFFIRMED.
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