State v. Hassan , 309 Neb. 644 ( 2021 )


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    09/10/2021 12:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HASSAN
    Cite as 
    309 Neb. 644
    State of Nebraska, appellee, v.
    Yahia Hassan, appellant.
    ___ N.W.2d ___
    Filed July 2, 2021.     No. S-20-562.
    1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
    under the residual hearsay exception, an appellate court reviews for
    clear error the factual findings underpinning a trial court’s hearsay rul-
    ing and reviews de novo the court’s ultimate determination to admit
    evidence over a hearsay objection.
    2. Convictions: Evidence: Appeal and Error. 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 favor-
    ably to the State, is sufficient to support the conviction.
    3. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
    one made by the declarant while testifying at the trial or hearing, offered
    to prove the truth of the matter asserted.
    4. Rules of Evidence: Hearsay. Hearsay is not admissible unless other-
    wise provided for in the Nebraska Evidence Rules or elsewhere.
    5. Hearsay: Words and Phrases. A verbal act is a statement that has legal
    significance, i.e., it brings about legal consequences simply because it
    was spoken.
    6. Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    7. Statutes. It is not within the province of the courts to read meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HASSAN
    Cite as 
    309 Neb. 644
    Appeal from the District Court for Hall County: Andrew C.
    Butler, Judge. Affirmed.
    Jerrod P. Jaeger, Deputy Hall County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    After the State charged Yahia Hassan with various drug
    offenses, the county court ordered Hassan to appear at a pre-
    liminary hearing on an upcoming Thursday. Hassan did not
    appear for the hearing, a bench warrant was issued, and Hassan
    was arrested on the following Monday. Although Hassan was
    not convicted of any of the underlying drug offenses, he was
    charged and convicted in district court for failure to appear.
    Two questions are at issue in this appeal. The first is whether
    the court records the State relied upon to prove Hassan’s fail-
    ure to appear were properly admitted. The second is whether
    there was sufficient evidence to support Hassan’s conviction.
    Hassan claims there was insufficient evidence of an essential
    element of a failure to appear violation: that he willfully failed
    to surrender himself within 3 days of being ordered to appear.
    Hassan argues that the 3-day period must be determined with
    reference to Neb. Rev. Stat. § 25-2221 (Reissue 2016), a stat-
    ute setting out a method for the computation of time. He con-
    tends that if that statute applied, the period in which he could
    lawfully surrender himself extends to the Monday on which
    he was arrested, and there was thus insufficient evidence he
    committed the offense. We find that there was no error in the
    admission of the court records and that § 25-2221 should not
    be used to calculate the 3-day period in the failure to appear
    statute, and thus, we affirm.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. HASSAN
    Cite as 
    309 Neb. 644
    BACKGROUND
    After police conducted a search of a car in which Hassan
    was riding as a passenger and discovered drugs and drug
    paraphernalia, Hassan was charged with criminal offenses in
    the county court for Hall County, and he was released from
    custody. The State later added an additional charge for failure
    to appear, alleging that Hassan willfully failed to appear for a
    preliminary hearing in the county court.
    After the case was bound over to the district court, it pro-
    ceeded to trial before a jury. Most of the State’s evidence
    was relevant to the possession charges. The State sought to
    prove the failure to appear charge through exhibit 7. Exhibit
    7 consisted of multiple records from the county court, includ-
    ing a journal entry from September 3, 2019, ordering Hassan
    to appear for a preliminary hearing on October 24 and warn-
    ing that failure to appear could result in the issuance of an
    arrest warrant, an additional charge for failure to appear, and
    a finding of contempt; an October 24 journal entry noting that
    Hassan failed to appear for the preliminary hearing; an October
    24 bench warrant issued by the county court as a result of
    Hassan’s failure to appear; and a warrant return indicating that
    law enforcement arrested Hassan pursuant to the warrant on
    October 28.
    Hassan objected to the admission of exhibit 7. Following a
    sidebar discussion not reflected in the bill of exceptions, the
    district court stated it was overruling the objection. Hassan’s
    counsel noted for the record that “the objection was under the
    public records exception.” The district court acknowledged the
    objection and again noted it was overruled.
    Following the conclusion of the State’s case, Hassan moved
    for a directed verdict on all charges. The district court granted
    Hassan a directed verdict on one of the possession charges, but
    denied a directed verdict on all others. Hassan did not intro-
    duce evidence.
    The jury returned a verdict finding Hassan not guilty of
    the remaining possession charges and guilty of the failure to
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    309 Nebraska Reports
    STATE v. HASSAN
    Cite as 
    309 Neb. 644
    appear charge. For the failure to appear conviction, the district
    court sentenced Hassan to 10 days’ incarceration with credit
    given for 10 days’ time served.
    ASSIGNMENTS OF ERROR
    Hassan assigns that the district court erred (1) by admitting
    exhibit 7 under the public records exception to the hearsay rule
    and (2) by overruling Hassan’s motion for directed verdict and
    finding the evidence sufficient to support his conviction for
    failure to appear.
    STANDARD OF REVIEW
    [1] Apart from rulings under the residual hearsay exception,
    we review for clear error the factual findings underpinning a
    trial court’s hearsay ruling and review de novo the court’s ulti-
    mate determination to admit evidence over a hearsay objection.
    State v. Draganescu, 
    276 Neb. 448
    , 
    755 N.W.2d 57
     (2008).
    [2] Regardless of whether the evidence is direct, circumstan-
    tial, 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 stan-
    dard is the same: In reviewing a criminal conviction, an appel-
    late court does not resolve conflicts in the evidence, pass on
    the credibility of witnesses, or reweigh the evidence; such mat-
    ters 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 suf-
    ficient to support the conviction. State v. Price, 
    306 Neb. 38
    ,
    
    944 N.W.2d 279
     (2020).
    ANALYSIS
    Admissibility of County Court Records.
    Hassan contends that the county court records found in
    exhibit 7 should not have been admitted into evidence at trial.
    He asserts that exhibit 7 is hearsay and was not admissible
    under the public records exception to the hearsay rule. See
    Neb. Rev. Stat. § 27-803(7) (Reissue 2016). Specifically, he
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    claims that the State did not provide adequate notice or show
    that exhibit 7 contained records of facts required to be observed
    and recorded pursuant to a duty imposed by law, both of which
    are required by § 27-803(7). We find that it is unnecessary to
    determine whether exhibit 7 was admissible under § 27-803(7),
    because Hassan objected to exhibit 7 as a whole, but exhibit 7
    is not entirely inadmissible hearsay.
    [3,4] Hearsay is a statement, other than one made by the
    declarant while testifying at the trial or hearing, offered to
    prove the truth of the matter asserted. State v. Poe, 
    292 Neb. 60
    , 
    870 N.W.2d 779
     (2015). Hearsay is not admissible unless
    otherwise provided for in the Nebraska Evidence Rules or
    elsewhere. State v. Poe, supra. But an out-of-court statement is
    not hearsay if the proponent offers it for a purpose other than
    proving the truth of the matter asserted. Id. This last principle
    is crucial here, because at least part of exhibit 7 could not have
    been offered for the truth of the matter asserted.
    [5] Included within exhibit 7 was a journal entry ordering
    Hassan to appear for a preliminary hearing on October 24,
    2019. This journal entry was a “verbal act” and was thus not
    hearsay. A verbal act is a statement that has legal significance,
    i.e., it brings about legal consequences simply because it was
    spoken. State v. McCave, 
    282 Neb. 500
    , 
    805 N.W.2d 290
    (2011). Such statements are not hearsay. See 
    id.
     As a com-
    mentator has explained, verbal acts are not hearsay, because
    they “involve words that have a legal effect that is not con-
    cerned with the out-of-court declarant’s memory, perceptions,
    or honesty.” G. Michael Fenner, The Hearsay Rule, 26 (3d
    ed. 2013).
    The county court’s order directing Hassan to appear for a
    preliminary hearing had legal significance simply because it
    was spoken. Because the county court issued the order, Hassan
    was obligated to appear and faced legal consequences if he
    did not. His failure to appear as ordered formed the basis for
    the conviction at issue. Several courts have concluded that
    imperative statements in court orders are not hearsay, because
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    STATE v. HASSAN
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    they bring about legal consequences as a result of being spo-
    ken. See, e.g., U.S. v. Dupree, 
    706 F.3d 131
    , 137 (2d Cir.
    2013) (“the question whether a court’s command imposes legal
    obligations on a party is outside the hearsay rule’s concerns”);
    U.S. v. Boulware, 
    384 F.3d 794
    , 806 (9th Cir. 2004) (“[a] prior
    judgment is not hearsay . . . to the extent that it is offered as
    legally operative verbal conduct that determined the rights
    and duties of the parties”); Prudential Ins. Co. of America v.
    Sagers, 
    421 F. Supp. 3d 1199
    , 1204 (D. Utah 2019) (“orders by
    the court are not offered for the truth of those statements, but
    rather to demonstrate the legal effect of the statements on the
    parties”). See, also, U.S. v. Hayes, 
    369 F.3d 564
    , 568 (D.C. Cir.
    2004) (reasoning that because imperative statements were not
    assertive, they did not “express a ‘truth’ for which they could
    be offered”). For the same reason, we conclude that the journal
    entry and order directing Hassan to appear for a preliminary
    hearing was a verbal act and not hearsay.
    Hassan may contend that other portions of exhibit 7 con-
    tained inadmissible hearsay, but we need not reach that ques-
    tion. Hassan objected to exhibit 7 as a whole. We have held
    that even if there are inadmissible parts within an exhibit, “an
    objection to an exhibit as a whole is properly overruled where
    a part of the exhibit is admissible.” State v. Merrill, 
    252 Neb. 736
    , 743, 
    566 N.W.2d 742
    , 748 (1997). Because part of exhibit
    7 was admissible, the district court did not err in overruling
    Hassan’s objection to its admission.
    Sufficiency of Evidence.
    Hassan also contends that his conviction cannot stand,
    because the State failed to introduce sufficient evidence of all
    of the essential elements of a failure to appear offense.
    The statute underlying the basis of the failure to appear
    charge, Neb. Rev. Stat. § 29-908 (Reissue 2016), provides in
    relevant part:
    Whoever is charged with a felony and is released from
    custody under bail, recognizance, or a conditioned release
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    STATE v. HASSAN
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    and willfully fails to appear before the court granting
    such release when legally required or to surrender himself
    within three days thereafter, shall be guilty of a Class IV
    felony . . . .
    We have held that to sustain a conviction under § 29-908,
    the State must establish that (1) the defendant was charged
    with a felony; (2) the defendant was released from custody
    under bail, recognizance, or a conditioned release; and (3) the
    defendant willfully failed (a) to appear before the court when
    legally required or (b) to surrender himself or herself within
    3 days thereafter. State v. Valdez, 
    236 Neb. 627
    , 
    463 N.W.2d 326
     (1990).
    Hassan does not contest that the State introduced evidence
    that he was charged with a felony; that he was released from
    custody under bail, recognizance, or a conditioned release; or
    that he willfully failed to appear for the preliminary hearing
    as ordered. He does claim that the State failed to show that he
    willfully failed to surrender himself within 3 days of failing to
    appear for the preliminary hearing.
    Hassan argues that the 3-day period referred to in § 29-908
    must be determined with reference to § 25-2221. Section
    25-2221 provides in pertinent part:
    Except as may be otherwise more specifically pro-
    vided, the period of time within which an act is to be
    done in any action or proceeding shall be computed by
    excluding the day of the act, event, or default after which
    the designated period of time begins to run. The last day
    of the period so computed shall be included unless it is a
    Saturday, a Sunday, or a day during which the offices of
    courts of record may be legally closed as provided in this
    section, in which event the period shall run until the end
    of the next day on which the office will be open.
    Hassan argues that although § 29-908 obligates defendants
    to surrender themselves within 3 days of a failure to appear
    before the court, § 25-2221 dictates that when the failure to
    appear occurs on a Thursday and the third day thereafter thus
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    STATE v. HASSAN
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    falls on a Sunday, as it did here, the time in which the defend­
    ant can surrender himself or herself and avoid a violation of
    § 29-908 includes the following Monday. And because the
    State’s evidence showed that Hassan was arrested on the fol-
    lowing Monday, he claims the State did not prove he failed to
    surrender himself as required by § 29-908.
    The State counters that § 25-2221 should not be applied here.
    The State does not contend that § 25-2221 has no application
    in the criminal context, but acknowledges that we have applied
    § 25-2221 in many such cases. See, e.g., State v. Hirsch,
    
    245 Neb. 31
    , 
    511 N.W.2d 69
     (1994) (applying § 25-2221 in
    determining whether prosecution was time barred); State v.
    Thompson, 
    244 Neb. 375
    , 
    507 N.W.2d 253
     (1993) (applying
    § 25-2221 in determining whether motion for new trial was
    timely filed); State v. Bridger, 
    223 Neb. 250
    , 
    388 N.W.2d 831
    (1986) (applying § 25-2221 in determining whether appeal
    was timely filed); State v. Jones, 
    208 Neb. 641
    , 
    305 N.W.2d 355
     (1981) (applying § 25-2221 in speedy trial computation).
    Instead, the State attempts to distinguish those cases, argu-
    ing that the deadlines in those cases were “administrative” or
    “procedural,” while the deadline in § 29-908 is not. Brief for
    appellee at 14 and 15.
    [6,7] To answer whether the 3-day period in § 29-908 should
    be determined with reference to § 25-2221, we must interpret
    § 25-2221. To do so, we apply our familiar principles of statu-
    tory interpretation, which we briefly review here. When inter-
    preting a statute, the starting point and focus of the inquiry is
    the meaning of the statutory language, understood in context.
    In re Guardianship of Eliza W., 
    304 Neb. 995
    , 
    938 N.W.2d 307
     (2020). Our analysis begins with the text, because statu-
    tory language is to be given its plain and ordinary meaning,
    and an appellate court will not resort to interpretation to ascer-
    tain the meaning of statutory words which are plain, direct,
    and unambiguous. See 
    id.
     Neither is it within the province of
    courts to read meaning into a statute that is not there or to read
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    anything direct and plain out of a statute. Parks v. Hy-Vee, 
    307 Neb. 927
    , 
    951 N.W.2d 504
     (2020).
    Applying these principles to the question at hand, we con-
    clude that § 25-2221 should not be used to determine the 3-day
    surrender period in § 29-908. Section 25-2221 provides that its
    procedure for counting days is to be applied when there is a
    “period of time within which an act is to be done in any action
    or proceeding” (emphasis supplied). There is no question that
    by requiring defendants to surrender themselves within 3 days
    of failing to appear as ordered, § 29-908 creates a period of
    time in which an act is to be done. In addition, our prior cases
    appear to have treated a criminal prosecution as an “action or
    proceeding” for purposes of § 25-2551. We do not, however,
    understand § 29-908 to require defendants to perform the time-
    sensitive act of surrendering themselves following a failure to
    appear in the action or proceeding.
    Section 29-908 makes it a crime for certain individuals to
    willfully fail (1) to appear for court when legally required and
    (2) to surrender themselves within 3 days. It does not, however,
    direct to whom those defendants must surrender or provide
    any indication that their required surrender must take place
    to the court in the criminal proceeding. We see nothing in the
    statute that would prevent a defendant who failed to appear for
    a required court appearance from surrendering to law enforce-
    ment in the county in which he or she was ordered to appear
    within 3 days and thereby avoiding a violation of § 29-908.
    Yet, in that scenario, the defendant is not taking any action in
    the criminal proceeding. The defendant is simply surrendering
    to law enforcement to avoid committing a criminal offense.
    The failure to surrender within 3 days of being ordered to
    appear is an essential element of a violation of § 29-908, but
    the defendant is not required to take that action in the under-
    lying proceeding. Accordingly, § 25-2221, by its terms, does
    not apply.
    We acknowledge that this court has not always adhered
    closely to the text of § 25-2221 in determining whether its
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    method for computing time should be applied. In State ex rel.
    Wieland v. Beermann, 
    246 Neb. 808
    , 
    523 N.W.2d 518
     (1994),
    we applied § 25-2221 as we were determining whether state-
    ments describing proposed constitutional amendments were
    timely filed with the Secretary of State. We concluded that
    § 25-2221 applied in reliance on a treatise, which stated that
    “[a] statutory rule for the computation of time is usually con-
    strued as a general provision relating to all acts required and
    permitted by law, unless an intention to the contrary affirma-
    tively appears or a different construction seems imperative
    . . . .” State ex rel. Wieland v. Beermann, 
    246 Neb. at 812,
     
    523 N.W.2d at 523,
     quoting 86 C.J.S. Time § 8 (1954) (internal
    quotation marks omitted).
    To the extent we suggested in State ex rel. Wieland that
    § 25-2221 should be “construed as a general provision relat-
    ing to all acts required and permitted by law,” we glossed over
    § 25-2221’s text. Unlike some time computation statutes from
    other states, see, e.g., 5 Ill. Comp. Stat. Ann. 70/1.11 (West
    2016) (“[t]he time within which any act provided by law is
    to be done shall be computed by . . . .”), § 25-2221 does not
    state that its method of time computation should be applied to
    any and all acts required by law. As we have noted, it applies
    only to those acts which must be done “in any action or pro-
    ceeding.” It is the function of the Legislature, through the
    enactment of statutes, to declare what is the law and public
    policy of this state. Rogers v. Jack’s Supper Club, 
    304 Neb. 605
    , 
    935 N.W.2d 754
     (2019). The Legislature has specified the
    circumstances in which the method of computing time outlined
    in § 25-2221 is to be applied. We are obligated to follow its
    policy direction.
    Because § 25-2221 does not apply to determining the 3-day
    surrender period of § 29-908, we interpret the reference in
    § 29-908 to 3 days according to its plain and ordinary meaning
    of 3 calendar days. See In re Guardianship of Eliza W., 
    304 Neb. 995
    , 
    938 N.W.2d 307
     (2020). With this understanding
    in mind, it becomes clear that the State introduced sufficient
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    evidence that Hassan failed to surrender himself within 3
    days of the preliminary hearing. As we have discussed, Hassan
    failed to appear for the preliminary hearing on Thursday,
    October 24, 2019, and was then arrested on Monday, October
    28. As more than 3 calendar days elapsed between his failure
    to appear and his arrest, there was evidence by which the jury
    could have found each of the essential elements of a violation
    of § 29-908.
    CONCLUSION
    Because we find that Hassan’s assignments of error lack
    merit, we affirm.
    Affirmed.