State v. Parnell ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. PARNELL
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.
KEINALD V. PARNELL, ALSO KNOWN AS REGINALD V. PARNELL, APPELLANT.
Filed December 13, 2016. No. A-16-354.
Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Affirmed.
Julie A. Frank for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.
Reginald V. Parnell, pro se.
INBODY and PIRTLE, Judges, and MCCORMACK, Retired Justice.
MCCORMACK, Retired Justice.
I. INTRODUCTION
Keinald V. Parnell, also known as Reginald V. Parnell, appeals his convictions and
sentences for burglary, terroristic threats, and first degree false imprisonment. On appeal, Parnell
alleges that there was insufficient evidence to support his convictions and that he received
excessive sentences. Upon our review, we find no merit to Parnell’s arguments, and we affirm.
II. BACKGROUND
Parnell was charged with burglary, terroristic threats, first degree false imprisonment, two
counts of use of a firearm to commit a felony, possession of a firearm by a prohibited person, and
misdemeanor violation of a protection order. The State also alleged that Parnell was a habitual
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criminal. Parnell pled guilty to the violation of a protection order and proceeded to trial on the
remaining six charges.
The evidence at trial showed that in the early morning hours of May 9, 2015, Parnell
entered the house of his ex-girlfriend, Randie Frederick. Randie was not home, but her adult son,
Dominic Frederick, was asleep in the living room. Dominic’s two children, who also lived in the
house, were not at home that night. Parnell brandished a knife and, Dominic later claimed, a gun,
and forced Dominic to remain in the living room of the house until the morning hours. In the
morning, Dominic’s uncle came by the house after receiving no answer to phone calls to Dominic’s
cellphone. The uncle saw Dominic sitting on a couch inside the house and saw another figure in
the house, but left without speaking to Dominic. Shortly thereafter, the Fredericks’ next door
neighbor saw a broken window on the Fredericks’ house and called the police. Following the
police’s arrival, Dominic was able to safely exit the house and an hours-long standoff between
Parnell and police ensued. Parnell was eventually apprehended in the attic of the house and
arrested.
On the day of Parnell’s arrest, police collected a knife and a glove from the Fredericks’
home. Two days later, Dominic summoned the police back to his house to retrieve a second knife
he claimed to have found in the attic. Eleven days later, police returned to the house with special
equipment and located a gun in the basement drywall.
The jury found Parnell guilty of burglary, false imprisonment, and terroristic threats, and
acquitted him of the three firearms charges.
The court ordered a presentence investigation and conducted an enhancement hearing. The
court found Parnell to be a habitual criminal and sentenced him to 30 to 30 years for burglary, 30
to 30 years for terroristic threats, 30 to 30 years for false imprisonment, and one year for violation
of a protection order. The court ordered that all four sentences be served concurrently and awarded
Parnell credit for 327 days served.
Parnell appeals. Additional facts will be discussed, as necessary, in the analysis section
below.
III. ASSIGNMENTS OF ERROR
Parnell alleges that there was insufficient evidence to support his convictions for burglary,
terroristic threats, and false imprisonment. He also alleges that he received excessive sentences for
these three convictions.
We also note that Parnell submitted two pro se briefs on appeal. Parnell’s first pro se brief
does not contain assigned errors or an argument section and, as such, does not comply with the
rules of appellate practice for the formatting of briefs. See Neb. Ct. R. App. P. § 2-109(D). Parnell’s
second pro se brief contains two assignments of error: that there was insufficient evidence to
support Parnell’s convictions and that the district court engaged in “Judicial Bias” at the
preliminary hearing. Parnell’s argument pertaining to the insufficiency of the evidence echoes
Parnell’s counsel’s argument on the same issue. There is no argument pertaining to Parnell’s
second pro se assignment of error of judicial bias. 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. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015). Accordingly, because
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Parnell’s pro se arguments either mirror those asserted by his attorney or fail to comply with our
court rules, we do not separately address them.
IV. STANDARD OF REVIEW
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, 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, and a conviction will be
affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the conviction. State v. Duncan, 293 Neb. 359,
878 N.W.2d 363 (2016).
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. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
V. ANALYSIS
1. SUFFICIENCY OF EVIDENCE
Parnell first argues that the State failed to present sufficient evidence to sustain his
convictions for terroristic threats, false imprisonment, and burglary. With respect to his convictions
for terroristic threats and false imprisonment, Parnell argues that the State’s main witness,
Dominic, was unreliable and that his testimony was therefore inadequate to support the jury’s
guilty verdicts. With respect to his conviction for burglary, Parnell argues that the State failed to
prove that he entered the Frederick home with the requisite intent to steal property or to commit a
felony. We find no merit to either of Parnell’s assertions regarding the sufficiency of the evidence.
In reviewing a sufficiency of the evidence claim, the relevant question 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. McClain, 285
Neb. 537, 827 N.W.2d 814 (2013).
We will address Parnell’s two arguments regarding the sufficiency of the evidence in turn.
(a) Terroristic Threats and False Imprisonment
Parnell argues that there was insufficient evidence to supports his convictions for terroristic
threats and false imprisonment because Dominic’s testimony was not believable. Parnell points to
numerous inconsistencies in Dominic’s testimony including whether Dominic arranged to have
his children out of the house the night of the incident or whether his mother-in-law volunteered to
take them, whether he went out with friends or stayed in, how Dominic was able to see his uncle
through a window while sitting on the couch, whether Parnell held the knife the entire time or put
it in his pocket at times, whether Dominic remained seated the entire time or walked around, which
of the two knives police seized was the one Parnell used, when Dominic’s children returned home
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after the incident, and whether Dominic was frightened during the incident or not. We find no
merit to this assignment of error.
The State presented the testimony of numerous witnesses, including several police officers,
at the trial. The officers described the hours-long standoff with Parnell and how they eventually
entered the house and arrested him, using flash bangs, a PA system, a police robot, a police dog,
and a SWAT team. The remainder of the officers’ testimony related to locating the two knives and
gun in the Fredericks’ home in the hours and days after the standoff.
Officer RoseMary Henn testified that she transported Dominic for a formal police
interview after the standoff was over. After Dominic’s interview, Henn drove Dominic back to his
house. Upon entering the house, Dominic informed Henn that a flip knife and a glove on the coffee
table were from the incident. Officer Henn seized the items as evidence. Officer Henn then helped
search the attic but did not locate any additional evidence.
Officer Derek Vieth testified that on May 11, 2015, two days after the incident with Parnell,
Dominic summoned police back to his house. When Officer Vieth arrived, Dominic informed him
that he had found another knife, this time in the attic. Dominic had removed the knife from the
attic and placed it on top of his kitchen cabinet. Officer Vieth summoned the crime lab to collect
the knife.
Todd Morgan, a crime lab technician, testified that he collected and tested the knife Officer
Vieth had located on top of the cabinet. According to Morgan, no latent prints were found on the
knife.
Officer Charles Moffitt testified that on May 20, 2015, he returned to the Fredericks’ home
to assist in locating a weapon that was believed to still be in the house. Moffitt used an optic camera
with a scope to locate a gun in a hole in the basement drywall. Moffitt testified that someone had
directed his attention to the drywall, but that he could not remember who.
Kimberly Van Den Akker, a crime lab technician, testified that she collected and tested the
firearm Moffitt had located in the basement. According to Van Den Akker, no fingerprints were
found on the gun. The parties stipulated that DNA located on the gun’s magazine excluded Parnell
as a contributor, but DNA located on the gun could not exclude Parnell as a contributor.
The State also presented the testimony of Kevin Watkins, Dominic’s uncle. Watkins
testified that on the night of May 8, 2015, he was supposed to spend time with Dominic but ended
up falling asleep early. On the morning of May 9, Watkins tried calling Dominic around 8 a.m. but
received no response. Watkins then went to Dominic’s house around 9 a.m. Watkins knocked on
two doors, and was eventually able to see Dominic inside through a window. Watkins made eye
contact with Dominic and testified that Dominic “didn’t look normal.” Watkins also saw another
person in the house, though he could only see the back of the person’s head. Watkins eventually
left the house, figuring that Dominic was upset with him for not spending time with him the night
before.
The State also called Jay Julin, the neighbor who called the police. Julin testified that he is
the neighbor and landlord to the Fredericks. On the morning of May 9, 2015, he was mowing the
lawn and saw somebody (presumably Watkins) looking into the windows of the house, which he
found suspicious. Julin also noticed a broken window on the Fredericks’ house. Julin tried to call
Dominic but received no response. Julin then called the police. Julin testified that when they
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arrived, officers tried knocking on the door but received no response. Eventually, Dominic came
to the door and officers pulled him outside. Julin described Dominic as looking “[v]ery anxious”
upon his removal from the house.
The State’s key witness was Dominic. Dominic testified that he lives at the house with his
mother, Randie, and his two children. According to Dominic, Randie was out of town the weekend
of May 9, 2015, on business and Dominic had his mother-in-law watch his children. Dominic had
plans to hang out with his Uncle Kevin and a friend and go to a party on the night of May 8.
Dominic testified that he ended up hanging out with his friend and the pair just stayed in at
Dominic’s house and “had a couple shooters, smoked a blunt.” Dominic testified that he fell asleep
in the living room around 11:30 or midnight.
According to Dominic, he awoke around 3 a.m. to use the bathroom. In the corner of the
room by the bathroom, Dominic saw a silhouette. Dominic testified that at first he thought it was
a friend playing a joke on him, but then he saw the person was bald and knew it must be Parnell.
Parnell had a gun in his hand and made Dominic return to the couch. According to Dominic,
Parnell said that he wanted to talk to Randie and that they would “wait for your mom.” Dominic
testified that Parnell also had a 2- to 3-inch pocket knife with a blade that folded out in his other
hand. Dominic testified that the pair remained in the living room until the next morning when the
police arrived. According to Dominic, he and Parnell discussed their problems with women during
this time. Dominic testified that Parnell did not set the gun down, and had the knife in his other
hand. Dominic then testified that at one point, Parnell got them beers from the fridge and also let
Dominic use the bathroom.
Dominic testified that in the morning, his uncle knocked on the door. Parnell became
agitated when Watkins knocked, and he threatened to “pop” Dominic and “put one in [Watkins’]
dome” if Dominic let him in. Dominic testified that he made eye contact with his uncle through
the window, but did not say anything because he wanted Watkins to remain safely outside.
Dominic testified that the police arrived a short while later and began knocking on the door.
Dominic described Parnell as “unstable” once the police arrived, including walking around the
house shutting all the blinds. Dominic testified that he offered to tell the police that there was no
problem, and Parnell let him exit the house. Dominic testified that the police pulled him to the
ground once he exited the house.
Dominic testified that once the standoff with Parnell was over, Dominic was transported
for a formal police interview. Dominic testified that after the interview, he and an officer returned
to his house to search for the weapons. Dominic testified that he found a glove in his daughter’s
room and a knife in the front room in “a mixture of everything” because the police had “trashed”
the house during their encounter with Parnell. Dominic testified that the knife he found that first
day was not the same knife Parnell used during the incident because the knife Parnell had wielded
was a different color.
Dominic testified that in the days after the event, he kept searching the house for the
missing weapons. He testified that he found a knife in the attic insulation that he recognized as the
knife Parnell had used. Dominic also identified the gun found in the basement drywall as being
the same firearm Parnell had used.
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On cross-examination, Parnell’s attorney used a prior deposition of Dominic and his police
interview to impeach his trial testimony. In particular, Dominic had stated in the deposition that
his mother-in-law had “mysteriously” offered to take his kids on the weekend of May 9, not that
he asked her to watch the kids. Dominic had also stated at one point that his children did not come
home until after the gun was found, but later said they returned home a few days after the incident,
after the second knife was found, but before the gun was found. Additionally, Dominic told the
interviewing detective that he had gone out with his friends earlier in the night on May 8 rather
than staying at home the entire time. Parnell’s attorney also questioned how Parnell could have
held a gun and a knife during the entire incident while also retrieving and drinking beers. Dominic
responded that Parnell put the knife in his pocket at times and explained that he was confused by
the attorney’s question because she had not been asking about Parnell retrieving the beers at the
time.
Parnell’s attorney also revealed that Dominic had earlier been inconsistent about which of
the two knives had been the one Parnell had used. Additionally, Dominic had earlier described
Parnell as calm, not violent, and had stated that he sympathized with Parnell. Lastly, Dominic
admitted that he had not remained seated on the couch during the entire encounter, but had gotten
up and moved around at times.
It is true that Parnell’s attorney impeached Dominic’s testimony and revealed several
inconsistencies between his earlier statements and trial testimony. However, many of these
inconsistencies were on relatively minor details, such as why Dominic’s children were not at home,
whether Dominic went out with friends or stayed in before Parnell’s arrival, and when Dominic’s
children returned to the home. Dominic’s testimony was consistent in identifying Parnell as the
person who entered the house in the middle of the night, brandished a knife, and refused to let
Dominic leave. The jury saw Dominic testify and apparently determined that, despite the
inconsistencies, his overall story of Parnell holding Dominic at knifepoint was credible. Parnell’s
argument asking us to find insufficient evidence based on allegedly incredible testimony
contradicts our standard of review. In reviewing a sufficiency of the evidence claim, we do not
pass on the credibility of the witnesses--that is for the trier of fact. State v. Draper, 295 Neb. 88,
886 N.W.2d 266 (2016).
Parnell also points out that the jury apparently did not believe Dominic’s testimony that
Parnell had a gun because it acquitted him of the three firearms-related charges. However, this
does not mean that there was insufficient evidence by which the jury could have found Parnell
guilty of the remaining three charges based on the theory that Parnell had a knife. Construing the
evidence in the light most favorable to the State, a rational jury could have found Parnell guilty of
terroristic threats and false imprisonment.
(b) Burglary
Parnell next argues that there was insufficient evidence to support his conviction for
burglary. Parnell argues that there was no evidence that he entered the house with the requisite
intent. We find no merit to this assignment of error.
A person commits burglary if such person willfully, maliciously, and forcibly breaks and
enters any real estate or any improvements erected thereon with intent to commit any felony or
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with intent to steal property of any value. Neb. Rev. Stat. § 28-507 (Supp. 2015). Intent sufficient
to support a conviction for burglary may be inferred from the facts and circumstances surrounding
an illegal entry. State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).
The State argued that Parnell broke a window and entered the Fredericks’ house with either
the intent to take money or with the intent to commit terroristic threats.
Dominic testified that upon entering the home, Parnell said that Randie owed him money
and that he was there to see her for that reason. Dominic testified that he offered Parnell money,
but Parnell refused it, stating that Randie was the one who should pay him.
Parnell argues that he could not have entered the home with the intent to steal property
because he did not eye any property in the home and refused to take the money Dominic offered
him. However, Dominic testified that Parnell was seeking money, but wanted Randie to pay him,
not Dominic. Therefore, there was sufficient evidence by which the jury could have found that
Parnell entered the home with the intent to steal money from Randie.
Parnell further argues that he could not have had the intent to commit terroristic threats
when he entered the home because he did not know that Dominic would be present. The evidence
at trial showed that, although Parnell may not have known who was present in the home, he
nevertheless broke a window, entered the house in the middle of the night, and carried a knife
while doing so. Accordingly, there was sufficient evidence by which the jury could have found
that Parnell entered the home with the intent to threaten someone inside, even if he was not aware
of the exact identify of the victim yet.
2. EXCESSIVE SENTENCES
Lastly, Parnell argues that he received excessive sentences. Parnell does not challenge the
court’s finding that he is a habitual criminal, but rather argues that the court failed to consider
mitigating factors. Specifically, Parnell points to his traumatic childhood and the fact that, at age
45, he is at a much lower risk of recidivism. We find no merit to this assignment of error.
When imposing a sentence, a sentencing judge should consider the defendant’s age,
mentality, education and experience, social and cultural background, past criminal record, and
motivation for the offense, as well as the nature of the offense and the violence involved in the
commission of the crime. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
Parnell was found to be a habitual criminal with respect to his convictions for terroristic
threats, false imprisonment, and burglary. The minimum sentence for being a habitual criminal is
10 years and the maximum sentence is 60 years. Neb. Rev. Stat. § 29-2221 (Reissue 2008). Parnell
was sentenced to 30 to 30 years on all three counts. Because Parnell’s sentences fall within the
statutorily provided sentencing range, we review his sentences only for an abuse of discretion.
At Parnell’s sentencing hearing, the district court noted that it had received and reviewed
the presentence report. The presentence report revealed that Parnell had an extensive criminal
history, dating back to his time as a juvenile. Parnell’s attorney also spoke at the sentencing
hearing. She emphasized that Parnell had suffered trauma at a young age because two of his
brothers had died and Parnell had been a witness to domestic violence. Parnell’s attorney also
argued that the minimum sentence of 10 years would have Parnell being released from jail at an
age where his risk of recidivism was greatly reduced.
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The court indicated that it had considered all of the information and argument presented at
the sentencing hearing, including the relevant statutory factors and the presentence report. The
court classified Parnell’s record as “pretty bad,” noting that he had over six prior felonies and had
previously been convicted of being a habitual criminal. The court also noted that the nature and
circumstances of the case were violent and could have resulted in more serious charges. The court
concluded that a lengthy sentence was in order.
The record reflects that the district court considered all the relevant factors in determining
Parnell’s sentences. In particular, the court heard and considered argument from Parnell’s attorney
regarding his traumatic past and his lower risk of recidivism. Despite considering these mitigating
factors, the court determined that Parnell’s extensive criminal history and the violence involved in
the current offenses required a lengthier prison sentence. Accordingly, we cannot say that the
district court abused its discretion in sentencing Parnell to three concurrent terms of 30 to 30 years.
VI. CONCLUSION
There was sufficient evidence to support Parnell’s convictions for burglary, terroristic
threats, and false imprisonment. Additionally, the district court did not impose excessive sentences
on Parnell. Accordingly, we affirm Parnell’s convictions and sentences.
AFFIRMED.
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