State v. Frith

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. FRITH
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.
BENJERMIN J. FRITH, APPELLANT.
Filed April 14, 2020. No. A-19-551.
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
Carolyn Wilson, Assistant Sarpy County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Benjermin J. Frith appeals his jury conviction of first degree domestic assault. Frith alleges
that the evidence presented at trial was insufficient to support his conviction and that the district
court erred in allowing hearsay testimony and overruling his motion for a new trial. For the reasons
that follow, we affirm.
BACKGROUND
On November 2, 2018, the State filed an information against Frith alleging that on or about
September 26, 2018, Frith committed first degree domestic assault in violation of Neb. Rev. Stat.
§ 28-323(3) (Reissue 2016), which makes it a crime to “intentionally and knowingly cause serious
bodily injury to [one’s] intimate partner.” First degree domestic assault is a Class IIA felony,
punishable by up to 20 years’ imprisonment, with no minimum sentence. § 28-323(7); Neb. Rev.
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Stat. § 28-105(1) (Cum. Supp. 2018). A jury trial on the State’s information was held on March 5
and 6, 2019.
At trial, Shelby Seago, the alleged victim, testified that at the time of the events of this
case, she and Frith were involved in an intimate, dating relationship. While she was at work the
evening of September 26, 2018, Seago received a phone call from Frith. Seago testified that Frith
“wasn’t really making any sense” and appeared to be “drunk” when he told her that “he was having
a girl come over” to the apartment they shared. Frith continued to “talk gibberish” until it appeared
to Seago that he had fallen asleep, and she ended the call.
Seago testified that after the phone call, she was “pissed” that Frith was apparently going
to have another woman over to the apartment. After she got off work, at approximately 8 o’clock
that evening, Seago returned to the apartment and noticed that it did not appear that anyone other
than Frith had been there. However, Seago did find a partially empty bottle of “Jäger” in the
apartment’s second bedroom. She testified that the bottle was “big” and she had never seen it
before that night.
Seago then went into the master bedroom where she found Frith laying on the bed
“sprawled out like a starfish face down” and snoring. She then picked up Frith’s cell phone from
the side table, entered the passcode Frith had previously given her, and found messages from Frith
“telling girls that [Frith] had his own place and a car and he could come pick them up and take
them back to the apartment. Or he could meet them, and he had drugs and alcohol that he could,
you know, give to them, too, if they wanted that.” Seago testified that she became upset and woke
Frith up and told him to “get out.” She testified that she previously had told Frith that if he did not
remain sober, he would not be allowed to continue to live with her. Frith then “continued to lay on
the bed and flipped [Seago] off and called [her] names” like “bitch” and told her to “fuck off.”
Seago testified that she went into the other bedroom, where Frith kept his belongings, and
began to pack them into a bin. She testified that soon after, she was “bear tackled” and Frith picked
her up and threw her down on the ground in the hallway. Seago attempted to back herself into a
corner so Frith would be unable to grab her, but he grabbed her from her side, picked her up, and
carried her into the bedroom doorway. She attempted to resist, but Frith was able to pick Seago up
and “tossed” her. Seago testified that she landed directly on her left elbow. Seago testified that the
pain was a “12 out of 10” and that she was “pretty sure [her elbow] broke.”
According to Seago, Frith then began to slam all the doors in the apartment, and then made
his way back to her and slapped her in the face and kicked her on her right hip while she remained
on the floor. Frith then dragged Seago by her arm into the living room. Seago testified that she was
“terrified” and unsure what was going to happen to her. Frith then lay down on the couch, told
Seago he needed “alone time,” and Seago told him to leave the apartment. Frith responded that if
Seago wanted him to leave she had to “call the cops.”
Seago testified that while she was still screaming at Frith, he got on top of her and held her
down with his hands and knees. Frith covered Seago’s mouth with his hand, trying to keep her
quiet. Frith soon became apologetic telling Seago “baby, I’m sorry” and “I didn’t mean it.” Seago
then bit Frith’s hand and told him to get off of her. Frith then went outside to smoke.
Seago testified that she then called her mother and told her to come pick her up. Seago
remained on the phone with her mother when Frith came back inside and she screamed at him to
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stay away from her. Seago’s mother then called the police and she relayed the questions the police
were asking to Seago. Seago told her mother that she thought her arm was broken because she was
in pain and could barely move it. Seago remained on the phone until the police arrived.
After the police arrived, Seago was examined by emergency medical technicians and was
taken by ambulance to a hospital. Over objection by Frith’s attorney, Seago testified that a doctor
at the hospital informed her that she had fractured her arm. Seago testified that she is left-hand
dominant.
Seago testified that she received x rays on her arm to determine what further treatment was
needed. The doctor at “OrthWest” determined that Seago did not require a cast, but would need a
splint and sling that she could use “as needed.” Seago testified that she has experienced ongoing
problems with her arm, including “pain all day every day” where her fracture was. She has also
experienced issues with her use of her arm, including “shooting pain” that has caused her to drop
objects, disrupts her work, or will wake her up throughout the night. Seago testified that her doctors
informed her that she has a pinched ulnar nerve, likely as a result of the fracture.
On cross-examination, Seago testified that when she came home from work on the evening
of September 26, 2018, she became upset because she believed Frith had been drinking and
cheating on her. She acknowledged that she woke Frith up by yelling at him and that she poured
the remainder of the bottle of Jäger into the sink.
Seago testified that Frith had willingly given her the passcode to his phone and she
occasionally looked at the content of his phone. She testified that she discovered messages from
Frith to other women on Tinder, Facebook, and Instagram that made her angry to the point she
wanted Frith to leave the apartment. Seago denied that Frith answered the door when police arrived
and that he told her to tell the truth. She also denied answering questions from the police in the
apartment living room.
Seago testified that her followup appointment regarding her arm was with an orthopedist.
She acknowledged that the medical staff did not order or discuss any need for physical therapy.
They also told Seago that she did not require surgery “because the fracture wasn’t bad enough.”
Seago was given a sling at the first followup appointment, and returned to the orthopedist for three
other visits.
On redirect examination, the State introduced exhibits 2 through 7, photographs that were
taken at the hospital on September 26, 2018, and purport to show injuries Seago sustained on that
evening. Exhibit 3 shows scratch marks on one of Seago’s shoulders. Exhibits 6 and 7 show
Seago’s left arm wrapped in a splint and Ace bandage, and in a sling.
Seago testified that she was asked to give a written statement while she was at the hospital,
but was unable to do so because the injuries she sustained were to her dominant arm and she was
unable to write. She testified that, as a result of the fracture, she had to do everything with her right
hand for 6 weeks. She testified that she continued to have ongoing issues related to the fracture up
until the date of trial.
Jennifer McCabe, Seago’s mother, testified that she received a phone call from Seago on
the evening of September 26, 2018. McCabe testified that Seago was “crying hysterically” and
Seago told her that Frith had thrown and pushed her down. Seago also informed McCabe that her
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arm was numb and she believed that it was broken. McCabe testified that she believed Seago called
somewhere between 7:30 p.m. and 8:30 p.m. that evening.
McCabe testified that Seago told her that she and Frith had gotten into an argument and
Frith pushed her and held her down on the floor, but she was able to get away and lock herself in
the bedroom. McCabe testified that, at that point, she called 911 on a separate phone and drove
over to Seago’s apartment while she remained on the line with both Seago and the 911 dispatcher.
McCabe testified that she relayed the information that Seago had given her to the 911 dispatcher.
By the time McCabe arrived at Seago’s apartment, the police and an ambulance had already
arrived. McCabe waited 10-15 minutes in her car while the police talked to Seago. Seago was
taken to the hospital in the ambulance, which McCabe followed there. Once McCabe arrived at
the hospital, she was informed by hospital staff that Seago had been taken to an exam room and
that they would come get her when she was able to see Seago.
After approximately five minutes, McCabe was taken back to the exam room where Seago
was located. McCabe testified that Seago had been crying and was holding her arm. She testified
that Seago’s arm was originally wrapped in “half a cast” and a sling, but the cast was replaced the
next day for one less “bulky.” Seago remained in the second cast for 1½ to 2 weeks. Medical staff
indicated the cast could be worn or taken off “as comfortable” for Seago, but she was required to
wear the sling.
McCabe testified that she stayed with Seago at her apartment for the next 5 days after the
incident. She testified that Seago was unable to get out of bed or shower on her own, and also had
difficulty going to the bathroom alone. Seago works as a hairstylist and was unable to work until
mid-November, approximately a month and a half, due to her followup visits with the orthopedic
doctor. McCabe testified that Seago has voiced complaints about ongoing issues with her left arm
and that Seago has “some kind of nerve damage or pinch” that she had not previously dealt with.
McCabe testified that while Seago uses her right hand to hold scissors, she requires both hands to
cut hair.
Dr. Richard Alarid, an emergency physician with CHI Midlands, testified that he has been
a licensed physician in the state of Nebraska since 1980. Alarid testified that he worked the evening
shift, from 7 p.m. to 7 a.m. on September 26, 2018.
Alarid testified that he has extensive experience with examining and treating broken bones,
as well as identifying fractures. He testified that he treated Seago on September 26, 2018, at
approximately 9:30 p.m. He described her condition as “a fracture of the radius of the left elbow
and contusion of the right hip.” Alarid testified that he personally examined the x rays of Seago’s
left elbow and observed swelling of the joint and “a minor fracture” of the “radial head.” Alarid
referred Seago to orthopedics, and did not treat Seago beyond that evening.
Alarid testified that the type of injury Seago sustained can potentially lead to “traumatic
arthritis” and “joint tightness.” However, he testified that, based on the x rays, Seago had not
suffered a significant injury and her elbow “would heal without any adverse effect.” However,
there was nevertheless the possibility of continued pain and arthritic issues. Alarid would not
anticipate any nerve issues based on his examination of Seago’s injury, but testified such
determination could be made in followup treatment of the injury.
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On cross-examination, Alarid testified that Michelle Peterson Jones, a radiologist with
Midlands, reviewed his reading of Seago’s x rays the next day. Alarid testified that the most
common cause of a radial head fracture is when someone puts their arm out straight to break their
fall. He admitted that a doctor examining this type of injury would not be able to determine whether
the individual tripped or whether they were pushed down. Alarid testified that radial head fractures
usually heal within a 6- to 8-week period.
Deputy Earl Johnson, with the Sarpy County sheriff’s office, testified that he has worked
with the sheriff’s office since 2001 and is assigned to the road patrol division. Within that division,
Johnson patrols an assigned area, responds to dispatch calls, and performs traffic stops.
Johnson testified that he worked the evening shift on September 26, 2018, when he
responded to a dispatch call regarding an altercation between Seago and Frith. When he arrived at
Seago’s apartment, Johnson made contact with Seago and observed her to be crying and holding
her left arm. While Johnson was speaking with Seago, Frith “started yelling something from the
patio or deck of the apartment, and he said something about telling her to tell the truth.”
After speaking with Seago, Johnson asked Frith to explain to him what had happened, but
Frith initially refused. At that point, Frith was placed in handcuffs and sat down on the couch.
Johnson read Frith Miranda warnings and asked Frith if he was willing to speak with him. Frith
told Johnson that Seago had been “flipping out” and that the two of them had an argument over
text messages she found on his cellphone. According to Johnson, Frith indicated that he grabbed
Seago and threw her onto the bed. Johnson testified that this was not the same description of events
given by Seago. At that point, Johnson arrested Frith for assault. Johnson testified that Seago had
informed him that she hurt her arm when she was thrown to the ground by Frith, and he later found
out that she had broken her arm.
On cross-examination, Johnson acknowledged that his incident report indicated that Frith
had told him that Seago was “acting crazy” and that he had to hold her down on the bed because
she was “flipping out.” He further acknowledged that it was possible he was mistaken when he
testified that Frith had told him that he “threw” Seago on the bed.
After Johnson’s testimony, the State rested its presentation of evidence. At that point,
Frith’s trial counsel moved to dismiss on the grounds that the State had failed to produce sufficient
evidence to find Frith guilty of first degree domestic assault. The district court denied the motion
to dismiss.
Frith took the witness stand to testify in his own behalf. Frith testified that he and Seago
met on “Tinder” and were in a relationship for over a year. He testified that, despite Seago’s
testimony that it was “her apartment,” the two “split everything 50/50.” He acknowledged that
Seago’s name was the only one on the lease due to his credit and criminal history. Frith testified
that he has a previous conviction for burglary from 7 years earlier when he was around 20 years
old. He testified that the decision was “immature” and he has matured since then.
Frith testified that at some point during his relationship with Seago the two agreed “that
[he and Seago] would see other people in a sexual nature as long as [they] used protection and
were honest and [they] didn’t bring anybody back to [their] living quarters.” Frith denied having
a problem with alcohol, but admitted that he and Seago had discussed “maybe not going out every
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weekend” because of Seago’s work schedule. He denied Seago ever told him that if he drank again
he would have to move out of the apartment.
Frith testified that on September 26, 2018, he worked from 6 a.m. until 1 p.m. After his
shift, Frith went to a gas station and purchased a pack of cigarettes and a bottle of “Jägermeister.”
Frith testified that he went to the apartment he shared with Seago, played video games for an hour,
had two drinks, and went to sleep. Frith denied having called Seago that day.
Frith testified that he woke up at approximately 8:30 p.m. to the sound of Seago yelling at
him. He recalls her, standing in the doorway with his phone, accusing him of having “bitches on
Tinder” and drinking. Frith testified that Seago was “hostile” and “out of control.” Frith denied
having ever given Seago the passcode to his phone. He speculated that Seago got his passcode
from watching him enter it.
After Seago began yelling at Frith to “get out” of the apartment, he got out of bed, put on
his shoes, and started walking to leave. He testified that Seago was in the kitchen pouring the bottle
of Jägermeister into the sink and he was at the door when Seago grabbed him and “started hitting
[him] repeatedly in the torso.” Frith testified that he grabbed Seago in response, put his arms
around her, and told her to “relax.” He testified that Seago “jerked away,” lost her balance, and
fell backwards. Frith testified that he tried to help Seago up and asked if she was okay, but she
continued crying.
Frith testified that Seago eventually got up off the floor and went back to the bedroom to
make a phone call. He waited awhile, went back to the bedroom to check in on Seago, but she
yelled at him and told him to get away from her. Frith then went outside to the patio and was
smoking a cigarette when the police arrived. Frith acknowledged he probably told Seago to “tell
the truth.” He testified that he did not leave after Seago fell because he was concerned about her
safety.
Frith denied slapping Seago in the face or kicking her in the hip. Frith acknowledged that
he had been drinking, but insisted his alcohol consumption did not impact his ability to recall the
events of that night.
On cross-examination, Frith acknowledged it was possible that he did not recall calling
Seago because he had been consuming alcohol. He could not explain why Seago was so angry that
he had been talking to other women despite their “open relationship.”
Frith denied telling the police that he held Seago down on the bed and accused the sheriff’s
deputies of “putting words in [his] mouth.” Frith further denied ever giving a statement to police
and only “gave them a general like why [Seago] was upset.” He denied giving any details about
the events of that night.
After Frith’s testimony, the defense rested. Frith’s trial counsel renewed the previous
motion to dismiss based on the insufficiency of the evidence, which again was overruled. Both the
State and the defense presented closing arguments. After deliberations, the jury found Frith guilty
of first degree domestic assault. Because the jury found Frith guilty of the principal charge of first
degree domestic assault, it did not return a verdict on the lesser-included offense of third degree
domestic assault. A presentence investigation was ordered by the district court.
Trial counsel for Frith filed a motion for new trial on March 13, 2019, and an amended
motion for new trial on March 22. The amended motion alleged that the verdict was not supported
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by sufficient evidence as to the element of serious bodily injury and that the district court
committed an error of law by allowing hearsay testimony over Frith’s objection. That motion was
argued on March 25, and was taken under advisement. On April 3, the district court denied Frith’s
amended motion for new trial via written order. On May 20, Frith was sentenced to 5 to 10 years’
imprisonment with credit for 56 days’ time served. This appeal followed.
ASSIGNMENTS OF ERROR
Frith assigns, restated, that (1) the evidence presented at trial was insufficient to support a
finding of “serious bodily injury,” a necessary element to the charge of first degree domestic
assault; (2) the district court erroneously admitted hearsay testimony over Frith’s objections; and
(3) the district court erred in overruling Frith’s motion for a new trial.
STANDARD OF REVIEW
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. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Swindle, 300 Neb. 734, 915 N.W.2d
795 (2018). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
The standard of review for the denial of a motion for new trial is whether the trial court
abused its discretion in denying the motion. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State
v. Stubbendieck, supra.
ANALYSIS
SUFFICIENCY OF EVIDENCE
Frith first contends that the State failed to adduce sufficient evidence to support his
conviction of first degree domestic assault under § 28-323(3). Section 28-323(3) provides: “A
person commits the offense of domestic assault in the first degree if he or she intentionally and
knowingly causes serious bodily injury to his or her intimate partner.” Notably, the jury was also
instructed on the lesser-included offense of third degree domestic assault. Section 28-323(1)
provides:
A person commits the offense of domestic assault in the third degree if he or she:
(a) Intentionally and knowingly causes bodily injury to his or her intimate partner;
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(b) Threatens an intimate partner with imminent bodily injury; or
(c) Threatens an intimate partner in a menacing manner.
Frith argues that the State failed to establish that Seago sustained a “serious bodily injury.”
Under Neb. Rev. Stat. § 28-109(21) (Reissue 2016), a serious bodily injury is defined as “bodily
injury which involves a substantial risk of death, or which involves substantial risk of serious
permanent disfigurement, or protracted loss or impairment of the function of any part or organ of
the body[.]” Under § 28-109(4), “bodily injury” is defined as “physical pain, illness, or any
impairment of physical condition[.]” Because the jury was instructed on both the definition of
“serious bodily injury” and “bodily injury,” it is clear to us that it had the opportunity to consider
both definitions in light of the evidence, and determined that Frith had caused a serious bodily
injury as it is defined by § 28-109(21).
In arguing that there was insufficient evidence that Seago suffered a serious bodily injury,
Frith relies extensively on Alarid’s testimony that Seago’s injury “was not a significant injury”
and “would heal without any adverse effect.” Frith urges us to adopt the position that “where there
is medical testimony given which is contrary to that of a lay witness, that medical testimony should
be taken into account by the trier of fact or given more weight.” Brief for appellant at 12. However,
we decline to do so. The Nebraska Supreme Court has long held that “[i]n personal injury cases
where the injuries are objective and the conclusion to be drawn from proved basic facts does not
require special technical knowledge or science, the use of expert testimony is not legally
necessary.” State v. Thomas, 210 Neb. 298, 300-01, 314 N.W.2d 15, 18 (1981) (quoting Eiting v.
Godding, 191 Neb. 88, 91, 214 N.W.2d 241, 243 (1974)). What constitutes a “serious bodily
injury” is a determination that can be made from “the evidence presented and the common
knowledge and usual experience of the trier of fact.” State v. Thomas, 210 Neb. at 301, 314 N.W.2d
at 18.
Frith’s argument that Alarid’s testimony conflicted with that of Seago and her mother,
McCabe, and should be afforded more weight on the issue of serious bodily injury as expert
medical testimony, is nothing more than an argument related to credibility of the witnesses and
weight of the evidence. 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.
Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019). 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.
It is clear from the record that the State relied on the portion of § 28-109(1) defining serious
bodily injury as involving a “protracted loss or impairment of the function of any part or organ of
the body.” While Frith is correct that the Nebraska appellate courts have never defined “protracted
loss or impairment,” other courts have. Missouri defines protracted as “something short of
permanent but more than of short duration.” State v. Raines, 118 S.W.3d 205, 210 (Mo. App.
2003). Indiana defines “protracted” as “to draw out or lengthen in time.” Mann v. State, 895 N.E.2d
119, 122 (Ind. App. 2008). Applying the statutory term in the context of the charge of aggravated
assault, Wyoming requires that “the State must prove the victim suffered a long or lengthy
impairment of a bodily function.” Thompson v. State, 408 P.3d 756, 766 (Wyo. 2018). In all of
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these cases, the term “protracted” deals with the temporal aspect of the injury. See State v. Daniel,
103 S.W.3d 822 (Mo. App. 2003).
In this case, while Alarid testified that Seago’s injury “would heal without any adverse
effect,” he also testified that radial head fractures may lead to “traumatic arthritis” and “joint
tightness.” Furthermore, both Seago and her mother testified to the ongoing effects of the injury.
Seago testified that she still experienced pain “all day every day.” While Seago did not require
surgery for the fracture, she was unable to return to work for approximately 6 weeks at the direction
of her orthopedist, and experienced issues performing other daily tasks such as getting out of bed,
showering, and going to the bathroom. Alarid himself testified that his involvement with Seago’s
treatment was limited to the initial diagnosis and x-ray examination. He did not conduct any
follow-up with Seago since the date she was first examined at the hospital. After viewing the
evidence in the light most favorable to the prosecution, we find that a rational trier of fact could
have found that Seago suffered a “serious bodily injury” as defined under § 28-109(21).
Accordingly, this argument fails.
HEARSAY TESTIMONY
Frith next argues that the district court erred in allowing certain hearsay testimony from
Seago and McCabe over his objection. Specifically, Frith takes issue with statements of lay
witnesses he claims amount to impermissible opinion testimony related to Seago’s medical
diagnosis and treatment. The Nebraska Evidence Rules, specifically Neb. Rev. Stat. § 27-701
(Reissue 2016), provide:
If the witness is not testifying as an expert, his testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to clear understanding of his testimony or the
determination of a fact in issue.
However, the State argues, and we agree, that Frith has waived this argument. The
opponent to the evidence must identify which statements are objectionable as inadmissible
hearsay. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). Unless an objection to offered
evidence is sufficiently specific to enlighten the trial court and enable it to pass upon the
sufficiency of such objections and to observe the alleged harmful bearing of the evidence from the
standpoint of the objector, no question can be presented therefrom on appeal. Id.
On appeal, Frith cites to the record claiming that certain testimony by Seago and McCabe
related to Seago’s ongoing medical treatment was impermissible hearsay. However, from
reviewing the record, none of the statements Frith now takes issue with on appeal were objected
to at trial. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). While the record does show Frith’s
trial counsel objected to certain testimony on hearsay grounds, this testimony does not consist of
the same statements Frith now takes issue with on appeal. Neither the trial court nor the appellate
court are obliged to sort the alleged hearsay statements out on the opponent’s behalf. State v.
Henry, supra. Because this argument has not been properly preserved, we do not address its merits,
and it fails.
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MOTION FOR NEW TRIAL
Frith’s final assignment of error is that the district court abused its discretion by denying
his motion for new trial. Under Neb. Rev. Stat. § 29-2101(4) (Reissue (2016), a new trial may be
granted when “the verdict is not sustained by sufficient evidence or is contrary to law[.]” In his
brief, Frith makes no argument to support his contention that the district court abused its discretion
in denying his motion for new trial other than the arguments that have been previously addressed
in his first two assignments of error. Because we have already concluded that Frith’s arguments
related to the sufficiency of evidence and the admission of hearsay testimony fail, this assignment
of error also fails.
CONCLUSION
After viewing the evidence in the light most favorable to the prosecution, a rational trier of
fact could have found all elements of first degree domestic assault were satisfied beyond a
reasonable doubt. Furthermore, Frith failed to preserve his assignment of error related to
inadmissible hearsay testimony. Accordingly, the district court did not abuse its discretion in
denying Frith’s motion for new trial. For the foregoing reasons, we affirm Frith’s conviction.
AFFIRMED.
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