State v. Case

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/06/2020 01:07 AM CST
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
State of Nebraska, appellee, v.
Trevor S. Case, appellant.
___ N.W.2d ___
Filed January 17, 2020. No. S-18-1197.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
cretion with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an abuse
of discretion.
3. 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.
4. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
5. Self-Defense: Jury Instructions. A trial court is required to give a self-
defense instruction where there is any evidence in support of a legally
cognizable theory of self-defense.
6. Self-Defense: Jury Instructions: Evidence. It is only when the evi-
dence does not support a legally cognizable claim of self-defense or the
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
evidence is so lacking in probative value, so as to constitute a failure
of proof, that a trial court may properly refuse to instruct a jury on a
defendant’s theory of self-defense.
7. Self-Defense. To successfully assert the claim of self-defense, a defend­
ant must have a reasonable and good faith belief in the necessity of
using force and the force used in defense must be immediately necessary
and justified under the circumstances.
8. ____. If a defendant has unjustifiably placed himself or herself in harm’s
way, a court may properly find that such facts do not support a lawful
claim of self-defense.
9. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
generally controlled by either a statute or a court rule.
10. Motions for Continuance: Evidence: Waiver. If a continuance would
have been a sufficient remedy for a belated disclosure in violation of
Neb. Rev. Stat. § 29-1912 (Reissue 2016), a defendant who fails to
request a continuance waives any rights he or she may have had pursu-
ant to § 29-1912.
11. Criminal Law: Evidence: Appeal and Error. When a criminal defend­
ant challenges the sufficiency of the evidence upon which a conviction
is based, 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.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Matthew Meyerle for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Trevor S. Case appeals his conviction and sentence in the
district court for Lancaster County for assault by a confined
person. A jury found Case guilty, and the court thereafter
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
sentenced him to 365 days in jail followed by postrelease
supervision for 12 months. Case claims on appeal that the
court erred when it refused his proposed self-defense instruc-
tion and when it admitted a recording of a telephone call he
made from jail. He also claims there was not sufficient evi-
dence to support his conviction. We affirm Case’s conviction
and sentence.
STATEMENT OF FACTS
On February 16, 2018, Case, who was confined in the
Lancaster County jail, got into an altercation with Kenneth
Burley, who was also confined in the jail and who had been
a cellmate with Case. As a result of the altercation, the State
charged Case with a Class IIIA felony, assault by a confined
person, in violation of Neb. Rev. Stat. § 28-932 (Reissue
2016).
On the first day of trial, the court considered certain pretrial
motions. Among those was Case’s objection to admission of
a recording of a telephone call he had made shortly after the
altercation and in which he made certain statements regard-
ing the event. Case objected to admission of the recording
because the State had provided the recording to Case only the
day before trial, which he noted was well beyond the time the
State was required to provide evidence pursuant to the court’s
discovery order. Case asserted that the recording fit within the
scope of the discovery statute, Neb. Rev. Stat. § 29-1912(1)(f)
(Reissue 2016), which requires production of “[d]ocuments,
papers, books, accounts, letters, photographs, objects, or other
tangible things of whatsoever kind or nature which could be
used as evidence by the prosecuting authority.” The State
contended that the recording was not subject to § 29-1912.
The State further contended that it had become aware of the
existence of the recording only the night before it provided it
to Case and that because it had provided the evidence to Case,
it did not think that “the remedy here is that it be excluded”
but that the defense, if it thought it needed additional time,
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
“could ask for a continuance.” After hearing the arguments of
the parties, the court overruled Case’s objection. Case did not
thereafter move for a continuance.
The first witness for the State was William McGlothlin,
who was a security manager for the Lancaster County jail. He
testified regarding his duties, which included keeping records
of persons confined in the jail, maintaining surveillance videos
recorded in the jail, and maintaining recordings of telephone
calls made from the jail by inmates. Based on knowledge
obtained in performing these duties, McGlothlin testified that
both Case and Burley were inmates at the jail on February
16, 2018, and that on that date, they were both in the same
housing unit, which contained 32 cells. McGlothlin provided
foundation for admission of a disc containing surveillance
video recordings that showed the altercation between Case and
Burley; the disc contained video from two cameras showing
the incident from two different angles. Case did not object to
admission of the video recordings.
McGlothlin also provided foundation for admission of the
recording of a telephone call made from the jail on February
19, 2018. McGlothlin testified that the call was made using a
personal identification number that was specific to Case. Case
objected to admission of the recording of the telephone call on
the basis of foundation. Case maintained that it had not been
established that the voice on the call was his. The court over-
ruled the objection. Case also renewed the objection he had
made prior to trial and continues to assert on appeal based
on the State’s failure to comply with the discovery order. The
court also overruled that objection and admitted the recording
of the telephone call into evidence. Although both the video
recordings and the telephone recording were admitted into evi-
dence during McGlothlin’s testimony, neither was published to
the jury at that time.
On cross-examination by Case, McGlothlin testified that
Case and Burley had been cellmates between December 19
and 31, 2017. McGlothlin testified generally regarding reasons
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STATE v. CASE
Cite as 304 Neb. 829
inmates might be moved from one cell to another, but he did
not testify regarding reasons Case and Burley were no ­longer
assigned to the same cell. McGlothlin also testified that Case
had had no significant disciplinary problems prior to the
February 16, 2018, incident.
The State’s next witness was Zachary Yost, a correctional
officer who was working at the Lancaster County jail on
February 16, 2018. On that date, he was assigned to the hous-
ing unit in which both Case and Burley were housed. Yost
testified that he was at the officer station in the unit when
he heard a noise, looked up, and witnessed a physical alter-
cation between Case and Burley. At the time he looked up,
both were “throwing closed-fist punches.” Yost got up from
his desk, called for assistance, and made his way toward the
altercation, giving loud verbal commands for the two to stop
fighting and for the other inmates to return to their cells. Yost
testified that when he first gave the commands, both Case
and Burley remained engaged in a physical altercation. When
he approached the two, Yost “used [his] right arm to deflect
. . . Case from . . . Burley.” Burley had stopped throwing
punches, but Case continued. Case thereafter “stopped throw-
ing punches, but . . . still continued to posture and advance
on . . . Burley.” At that time, Burley “had put his hands down
and had turned” away. When additional staff arrived, Yost
placed Burley in restraints while someone else placed Case in
restraints. Both were escorted out of the housing unit and Yost
did not have further interaction with either Case or Burley that
day. Yost further testified that he had been working the 2 or 3
days prior to the incident and that in the days leading up to the
altercation, Case had not told him that he was having any sort
of difficulties with Burley.
The surveillance video that had been admitted into evidence
during McGlothlin’s testimony was played for the jury during
Yost’s testimony. Yost testified that he had reviewed the video
and that it accurately depicted the altercation between Case and
Burley. During the playing of the video, counsel for the State
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
occasionally paused the video to ask Yost questions regarding
what was depicted. Yost noted that the video included footage
from two cameras that showed different angles on the alterca-
tion and that one of the two did not show the beginning of
the altercation.
Yost testified that it was common for inmates to walk in
circles around the housing unit as some inmates were depicted
doing in the video. Yost identified Burley as a person in the
video who was walking counterclockwise with another uniden-
tified inmate. At a later point in the video, Yost identified Case
as the person who walked out of one of the cells on the outer
edges of the area depicted; Yost testified that Case was coming
out of his own cell. The video shows that Case came out of
his cell and proceeded in a clockwise direction directly toward
Burley. Yost testified that in order to be let out of the cell, Case
would have needed to request an officer at the control kiosk to
allow him to do so. Yost further identified Case and Burley as
the persons in the video who began fighting and himself as the
person who came to intervene.
The recording of the telephone call was also played for the
jury during Yost’s testimony. Prior to the recording’s being
played, Yost testified that he had listened to the recording and
that he was familiar with Case’s voice. Yost testified that the
voice of the person placing the call was Case’s and that one of
the voices heard during the call was Case’s. In the recording,
the person identified by Yost as Case appeared to be discussing
the altercation with Burley with an unidentified person. At one
point, the other person asked, “Did he attack you or did you
go for him?” and the person identified as Case responded, “I
went for him.”
The State’s next witness was Burley. He testified that on
February 16, 2018, he was an inmate in the Lancaster County
jail. He was “doing laps” and talking with another inmate when
Case came up to them and said, “‘Stop hitting my door.’”
Burley denied having hit Case’s door. According to Burley,
after Case made the accusation, Burley “proceeded to walk off ”
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
and Case “start[ed] viciously attacking [him] . . . kept com-
ing towards [him], consistently, persistently.” Burley testified
that he backed up from Case and told him he did not want to
fight. When asked who threw the first punch in the altercation,
Burley testified, “He attacked me viciously, striking me in the
face, as well as throwing me to the ground. People were trying
to break it up, and he’s still coming towards me . . . .”
Burley also testified regarding injuries he received in the
altercation. The injuries included swelling in his face, the back
of his head, and near his ear, as well as his ankle. Burley fur-
ther testified that he and Case had previously been cellmates
for “several days” and that Burley had been moved to a dif-
ferent cell. Case was serving as an inmate porter, and Burley
testified that the reason for the move was because he and Case
kept different hours. Burley explained that he needed to be in
a bottom bunk because of a disability and that therefore, the
move would allow him to get better sleep. Burley testified that
prior to the altercation, he had not had any issues with Case
and had not bullied or threatened Case.
The State played the surveillance video during Burley’s
testimony and asked him questions about what was depicted.
Burley identified Case as a person depicted in the video and
stated that Case could be seen coming “[s]traight out the
cell . . . coming straight towards me.” Burley testified that
at the point when the altercation began, he “tried to take a
step away from [Case].” When counsel for the State noted
that it appeared in the video that Burley “didn’t take a step
backwards” but instead “took a step forward,” Burley testified
that he was “trying to walk away, away from him, get away
from this gentleman.” Burley testified that after the initial
punches, he was “bouncing back, still constantly bouncing
back, and [Case was] still persistently coming towards [him].”
Burley noted that at one point, he was “on the ground” with
Case “on top of [him].” He testified that he ended up on
the ground because of the “force of [Case’s] punches and
his anger, his rage.” When asked about some movements he
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
made that were depicted in the video as occurring before
the altercation began, Burley testified that he was show-
ing the person with whom he was walking “how a previ-
ous fight [there] happened” but that he was not involved in
that previous fight.
The final witness in the State’s case in chief was John
Winter, a Lincoln police officer who investigated the alterca-
tion between Case and Burley. As part of his investigation,
Winter had watched the surveillance video and had inter-
viewed both Case and Burley. Winter testified that photographs
that had been admitted into evidence accurately depicted inju-
ries to both Case and Burley.
Winter testified that when he interviewed Case, he had
advised Case of his Miranda rights and Case had waived his
right to counsel before talking to Winter. Winter testified that
Case said that he and Burley had previously been cellmates and
that he “had been having issues with . . . Burley, in the sense
that . . . Burley was making statements . . . that were untrue
about him.” Case further described to Winter that Burley had
been “coming by his cell door and lightly tapping on the cell
door, just loud enough to cause [Case] annoyance, but not loud
enough to draw any more attention.” Case told Winter that
Burley was “sort of a bully” and that he had told correctional
staff about issues he had had with Burley. Winter testified that
Case said that because staff had “failed to take any action” to
fix his issues with Burley, on the day of the altercation Case
determined “he was going to go handle the situation himself
and that’s why he ended up speaking with . . . Burley.” After
making that statement, Case declined to elaborate in more
detail regarding the altercation.
After the State rested its case, Case made a motion to dis-
miss. The court overruled the motion to dismiss.
Case chose to testify in his own defense. He testified that he
and Burley had been cellmates for “two to three weeks” and
that in that time, a relationship had been established in which
Burley was “demanding” of Case. Case testified that Burley
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
had let him know that Burley “was a gang member” and had a
certain “ranking in his gang.”
While in the Lancaster County jail, Case had been selected
to work as a porter with maintenance and cleaning duties.
He testified that the position gave him greater access than
other inmates to items such as “[c]leaning supplies, foods,
[and] laundry” and that this access sometimes prompted other
inmates to ask for favors. Case testified that Burley would
try to get Case to get him items but that Case would resist
because to do so would be a rule violation and he valued his
position as a porter. Case testified that his position as a porter
required him to work at night until 2 a.m. and that his hours
became an issue with Burley because they conflicted with his
sleep schedule. Case stated that because of his hours, Burley
“felt . . . that [Case] owed him things, and [that Case] needed
to . . . give the demanded things that he wanted.” Case testi-
fied that Burley’s demands made him feel “threatened” and
“fearful for [his] physical safety.” Case testified that one of
the ways Burley intimidated him was to talk about how he
used to be a boxer and to demonstrate his skills by shadow
boxing. Case testified that he had made certain corrections
officers, including Jordan Malcolm, aware of his problems
with Burley but that he had never filed a formal grievance
or complaint because he feared repercussions from Burley.
Case testified that Burley was eventually moved to a differ-
ent cell because of an incident in which Burley made threats
to Case.
Case testified that after Burley was moved to a differ-
ent cell in the same housing unit, Burley continued to make
subtle threats and to bully him. Case testified that several
days prior to the altercation with Burley, he had seen Burley
being physically threatening to another inmate. Case testified
that on February 16, 2018, he had been getting the sense that
Burley was going to follow through on threats he had been
making toward Case. That afternoon, Case was trying to sleep
in his cell and heard someone walking by his cell, “trying to
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STATE v. CASE
Cite as 304 Neb. 829
— to get [his] attention or to disrupt or to annoy [his] sleep.”
Looking out of his cell, he saw Burley walking with another
inmate, and, thinking it was Burley trying to get his attention
or annoy him, he came out of his cell and “walked over to him,
with no demeanor of intent of doing anything, other than just
asking.” Case asked why Burley was tapping on his door, and
Burley “played coy.” Case then got the sense that Burley was
going to hit him, based on Burley’s “look, his body language.”
Case testified that Burley then initiated physical contact with
a motion that Case described as “a jab . . . tuck his shoulder
underneath, walk into [Case], step towards [Case].” Case was
“startled,” and he pushed Burley. This resulted in a series of
punches between the two.
Case testified that his actions, including “taking [Burley]
to the ground,” were because he “had no other choice but
to be . . . defenseful [sic] in that manner, without hitting or
closed fisting.” Case testified that he took his shirt off during
the altercation because Burley was using the shirt to pull him
down. He also testified that he did not immediately respond to
Yost’s commands to stop fighting because “the moment was
very heated” and he “did not trust Burley in any type of situ-
ation.” Case testified that “Yost had no control over that sit­
uation” and that he thought that because he did not feel safe, he
needed “to stand until an officer either puts cuffs on [Burley]
or [himself].”
Case testified regarding the recording of the telephone call
that had been admitted into evidence and played during the
State’s case. He testified that he had had several previous
conversations with his mother to let her know about the situ-
ation that was going on with Burley. He admitted that when
she asked, “‘Did he attack you or did you go for him,’” he
replied, “‘I went for him.’” But he testified that this was not
a reference to his physically attacking Burley, but “more or
less standing up” and “be[ing] forward with my approach
with him.” Based on his communications with his mother, he
believed that she understood it in the same way. And contrary
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304 Nebraska Reports
STATE v. CASE
Cite as 304 Neb. 829
to Winter’s testimony, Case denied having said that he had
decided to handle the situation with Burley himself.
Later, on redirect, defense counsel played the surveillance
video and asked Case questions about what was depicted.
Counsel referred to a point in the video where Burley is seen
making motions that counsel described as “shadow boxing.”
Case testified that he saw those actions from his cell and that it
looked to him like “a threat, maybe a pre-warning.” Following
his testimony, Case rested his defense without presenting fur-
ther testimony or other evidence.
In rebuttal, the State called Malcolm as a witness. Malcolm
testified that he was a correctional officer at the Lancaster
County jail and that he had known Case as an inmate dur-
ing the period from December 2017 through February 2018.
Malcolm supervised Case in his work as a porter, and as a
result, he likely had more interaction with Case than with
other inmates. Malcolm testified that he would sometimes
have conversations with Case when no other inmates were
around, but he testified that Case had never discussed any
problems he was having with Burley and had never con-
fided that Burley was targeting him for assault. Malcolm
testified that he had never witnessed Burley bullying Case
and that if he had witnessed such behavior or if Case had
reported such behavior, he would have documented it in
a report according to procedure rather than attempting to
handle the situation himself. Malcolm further testified that if
Case had reported being threatened by Burley, he could have
been placed in protective custody. On cross-examination,
Malcolm testified, inter alia, that inmates in protective cus-
tody were subject to more restrictions and more time in their
cells than other inmates. After the State rested its rebuttal,
Case renewed his motion to dismiss and the court overruled
the motion.
At the jury instruction conference, the main issue of discus-
sion was Case’s proposed instruction on self-defense. Case
proposed the following instruction:
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STATE v. CASE
Cite as 304 Neb. 829
Case acted in self-defense if:
1. . . . Burley used or threatened force against . . .
Case; and
2. Under the circumstances as they existed at the
time, . . . Case reasonably believed that the force he used
against . . . Burley was immediately necessary to protect
himself against any such force used or threatened by
. . . Burley.
The fact that . . . Case [may] have been wrong in
estimating the danger does not matter so long as there
was reasonable basis for he believed [sic] and he acted
reasonably in response to those beliefs.
The State opposed Case’s proposed instruction and argued
that the evidence showed that Case had unjustifiably placed
himself in harm’s way. The State noted that Case’s own testi-
mony indicated that when he perceived a threat form Burley,
“he [left] his cell and immediately [went] to talk with . . .
Burley about it. And then, in all less than a minute, this hap-
pens.” The State argued that Case “could have easily stayed in
his cell or he could have easily asked the correctional officer
for assistance.” The State further argued that the alleged tap-
ping on Case’s cell door was “probably annoying” but “not a
threat of force” that would “justify him going on the offensive.”
The State concluded that Case’s use of force was not “immedi-
ately necessary and justifiable under the circumstances.”
Case argued that precedent required the court to give a
self-defense instruction where there was any evidence in sup-
port of a legally cognizable theory of self-defense. He argued
that there was evidence that he had gone into a dayroom,
where he had a right to be, with the intention of speaking
with Burley and not with the intention of starting a physical
fight. He further argued that there was evidence that Burley
made a move toward Case, which action gave rise to a claim
of self-defense.
The court refused Case’s proposed instruction on self-
defense. The court stated, “I think the evidence shows that . . .
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STATE v. CASE
Cite as 304 Neb. 829
Case left his cell, went directly to confront . . . Burley, and I
think no one’s testified that . . . Burley made the initial contact.
It was . . . Case that made the initial contact. It was . . . Case
that started the confrontation.”
After the case was submitted to the jury. The jury returned
a verdict finding Case guilty of assault by a confined person.
The court accepted the verdict and thereafter sentenced Case
to 365 days in jail followed by postrelease supervision for
12 months.
Case appeals his conviction and sentence.
ASSIGNMENTS OF ERROR
Case claims that the district court erred when it (1) refused
his proposed self-defense instruction and (2) admitted the
recording of the telephone call. He also claims there was not
sufficient evidence to support his conviction.
STANDARDS OF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Bigelow, 303 Neb. 729, 931 N.W.2d
842 (2019).
[2] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion.
State v. Hatfield, ante p. 66, 933 N.W.2d 78 (2019).
[3] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency 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 evi-
dence admitted at trial, viewed and construed most favorably
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to the State, is sufficient to support the conviction. State v.
Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
ANALYSIS
Self-Defense Instruction.
Case first claims that the district court erred when it refused
his proposed self-defense instruction. In State v. Graham, 234
Neb. 275, 450 N.W.2d 673 (1990), we stated that only where
the jury could reasonably find that the defendant’s use of
force was justified should the trial court instruct the jury on
self-defense. We determine that the evidence did not support
a self-defense instruction and that therefore, the court did not
commit reversible error when it refused the instruction.
[4] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Bigelow, supra.
As discussed below, we determine that Case’s tendered instruc-
tion on self-defense was not warranted by the evidence and that
therefore, we need not consider whether the instruction was a
correct statement of the law or whether Case was prejudiced by
the court’s refusal to give the instruction.
[5] We have held that a trial court is required to give a self-
defense instruction where there is any evidence in support of a
legally cognizable theory of self-defense. State v. Kinser, 252
Neb. 600, 567 N.W.2d 287 (1997). Case cites this proposi-
tion and emphasizes that because of the “any evidence” lan-
guage, the court was required to give his proposed self-defense
instruction. In support of his argument, Case points to evidence
to the effect that Burley had threatened him in the past; that
in the days leading up to the incident, the threats had become
more immediate; and that before Case threw his first punch,
Burley had made a move toward Case that Case characterized
as a “jab.”
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STATE v. CASE
Cite as 304 Neb. 829
[6] Although the evidence noted by Case could be favor-
able toward proving a theory of self-defense, the proposition
relied on by Case must be read in its entirety. It is not enough
to merely show “any evidence” of self-defense to support an
instruction thereon. Instead, the defendant must show “any
evidence in support of a legally cognizable theory of self-
defense.” Id. at 607, 567 N.W.2d at 292. As we further stated
in Kinser:
It is only when the evidence does not support a legally
cognizable claim of self-defense or the evidence is so
lacking in probative value, so as to constitute a failure of
proof, that a trial court may properly refuse to instruct a
jury on a defendant’s theory of self-defense.
252 Neb. at 606-07, 567 N.W.2d at 292.
Although the evidence noted by Case could be part of a
legally cognizable case of self-defense, the court needed to
determine without deciding factual issues whether the evidence
would support self-defense under Nebraska law. We therefore
review aspects of self-defense under Nebraska law that are rel-
evant to assessing the evidence in this case.
[7] Self-defense is a statutorily defined affirmative defense
in Nebraska. State v. Smith, 284 Neb. 636, 822 N.W.2d 401
(2012). Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides
in relevant part that “the use of force upon or toward another
person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting him-
self against the use of unlawful force by such other person
on the present occasion.” We have interpreted § 28-1409 to
mean that to successfully assert the claim of self-defense, a
defendant must have a reasonable and good faith belief in the
necessity of using force and the force used in defense must be
immediately necessary and justified under the circumstances.
State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State
v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998); State v.
Kinser, supra; State v. Graham, 201 Neb. 659, 271 N.W.2d
456 (1978).
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[8] Extrapolating from the requirement that the force used
must be “justified under the circumstances,” in a case involv-
ing a conviction for assault by a confined person, we stated,
“If a defendant has unjustifiably placed himself or herself in
harm’s way, a court may properly find that such facts do not
support a lawful claim of self-defense.” State v. Urbano, 256
Neb. at 201, 589 N.W.2d at 151. In Marshall, this court rea-
soned that the defendant voluntarily put himself in a position
of danger by going outside of his home to confront two men
when there was no evidence that anything prevented him from
remaining safely in his home and thereby avoiding the occa-
sion to use force.
Applying the law set forth above to the evidence in this
case, we determine that the evidence did not support a legally
cognizable theory of self-defense. In doing so, we apply the
law as set forth in Urbano and Marshall. The district court
rejected Case’s self-defense instruction because Case “made
the initial contact.” As the undisputed facts recited earlier
in our opinion show, Case left his cell and walked directly
up to Burley. The record is clear that there was no evidence
that Case was prevented from remaining safely inside his
cell. Instead, he unjustifiably placed himself in harm’s way,
and such facts do not support a legally cognizable theory of
self-defense.
Given the foregoing, we determine that the evidence did not
support a self-defense instruction, and we conclude that the
district court did not err when it refused the instruction pro-
posed by Case.
Recording of Telephone Call.
Case next claims that the district court erred when it admit-
ted the recording of the telephone call. Although at trial Case
objected to the recording based on both foundation and the
alleged discovery violation, his argument on appeal is lim-
ited to the discovery violation. We conclude that because
Case failed to move for a continuance after the evidence was
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provided by the State, Case has waived his right to relief from
the State’s belated production of the recording.
[9,10] Discovery in a criminal case is generally controlled
by either a statute or a court rule. State v. Hatfield, ante p.
66, 933 N.W.2d 78 (2019). Nebraska’s principal discovery
statute, § 29-1912, sets forth a list of evidence that may be
subject to discovery at the discretion of the trial court. The
list includes a defendant’s prior criminal record, the names
and addresses of witnesses on whose evidence the charge is
based, and documents, papers, books, accounts, photographs,
objects, or other tangible things of whatsoever kind or nature
which could be used as evidence by the prosecuting authority.
Neb. Rev. Stat. § 29-1919 (Reissue 2016) sets forth various
remedies the court may employ when there is a claimed viola-
tion of a discovery order: The court may (1) order such party
to permit discovery or inspection of materials not previously
disclosed, (2) grant a continuance, (3) prohibit a party from
calling a witness not disclosed or introduce evidence not dis-
closed, or (4) enter another order as it deems just under the
circumstance. We have held that if a continuance would have
been a sufficient remedy for a belated disclosure in violation
of § 29-1912, a defendant who fails to request a continu-
ance waives any rights he or she may have had pursuant to
§ 29-1912. State v. Hatfield, supra.
The record shows that immediately prior to the start of trial,
the court considered Case’s objection to admission of the tele-
phone recording on the basis that the State had provided the evi-
dence to Case only the day before trial, which was well beyond
the time the State was required to provide evidence pursuant to
the court’s discovery order. There was some dispute between
Case and the State as to whether the recording of the telephone
call was evidence subject to discovery under § 29-1912 and
the court’s discovery order. However, the State argued that
because it had provided the evidence to Case, even if such late
disclosure violated the discovery order, the proper remedy was
not to exclude the evidence but to allow a continuance if Case
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requested one. The court overruled Case’s objection, and Case
did not thereafter request a continuance.
While a court may order that a party not be permitted to
offer evidence at trial which it failed to disclose, this court has
stated a preference for a continuance in such situations. State
v. Hatfield, supra. In the circumstances of this case, a con-
tinuance would have been a sufficient remedy if Case needed
additional time to prepare a defense to the newly disclosed
evidence. However, Case failed to request a continuance after
the court overruled his objection, and therefore, he waived
any right he may have had pursuant to § 29-1912. See State v.
Hatfield, supra. We therefore conclude that the district court
did not err when it admitted the recording of the telephone call
into evidence.
Sufficient Evidence to Support Conviction.
Case finally claims that the evidence was not sufficient to
support his conviction. We conclude that the evidence was
sufficient.
[11] When a criminal defendant challenges the sufficiency
of the evidence upon which a conviction is based, 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. Montoya, ante p.
96, 933 N.W.2d 558 (2019).
Case was charged with assault by a confined person as a
Class IIIA felony in violation of § 28-932(1), which provides in
relevant part: “Any person (a) . . . who is legally confined in a
jail or an adult correctional or penal institution . . . and (b) who
intentionally, knowingly, or recklessly causes bodily injury to
another person shall be guilty of a Class IIIA felony . . . .”
Case does not dispute that the evidence established that at the
time of the altercation with Burley, he was legally confined in
the Lancaster County jail. Instead, he argues that the evidence
was not sufficient to establish that he intentionally, knowingly,
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or recklessly caused bodily injury to Burley. Much of his
argument in this regard is based on his theory that he acted in
self-defense. However, as discussed above, the evidence did
not support a legally cognizable theory of self-defense, and
therefore, such argument does not establish that the evidence
was not sufficient to support Case’s conviction.
There was sufficient evidence, including the video record-
ings, testimony by witnesses including Burley, and Case’s
statement in the recording of the telephone call that he “went
for” Burley, as well as his own testimony, to support a find-
ing that Case physically assaulted Burley. There was also evi-
dence that Burley suffered bodily injury and that such injury
had been caused by Case’s physical assault. Case argues that
Burley’s testimony in particular is not credible; however, we
do not pass on the credibility of witnesses on appeal, State
v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019), and
Burley’s testimony, if believed, as well as other evidence sup-
ports the conviction. Case directs us to his testimony that his
intent when he approached Burley was not to assault him but
merely to talk to him. Case asserts that this testimony estab-
lishes that he did not intentionally, knowingly, or recklessly
cause bodily injury to Burley. Again, we do not review the
jury’s credibility assessments of Case’s testimony regarding
his intent. We conclude that there was sufficient evidence to
support Case’s conviction.
CONCLUSION
We conclude that the district court did not err when it
refused Case’s proposed self-defense instruction; nor did it err
when it allowed the recording of the telephone call into evi-
dence. We further conclude that there was sufficient evidence
to support Case’s conviction. We therefore affirm Case’s con-
viction and sentence.
Affirmed.