State v. Arellano

STATE OF NEBRASKA, APPELLEE, v. JOSE A. ARELLANO, APPELLANT.

No. A-17-346.

NEBRASKA COURT OF APPEALS

December 12, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge. Affirmed as modified.

Stacy C. Bach, of Nossaman Petitt Law Firm, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

PIRTLE, RIEDMANN, and ARTERBURN, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Jose A. Arellano was charged with eight counts of possession of a firearm by a prohibited person, one count of possession of a controlled substance, and two counts of possession of drug paraphernalia. After a trial, a jury found him guilty of eight counts of possession of a deadly weapon by a prohibited person and not guilty of the remaining charges. The district court sentenced Arellano to the mandatory minimum period of 3 years' imprisonment for each charge, with 95 days' credit for time served before sentencing. All sentences were ordered to run concurrently. Arellano appeals, and for the reasons set forth more fully below, we affirm the judgment but modify the sentencing order.

II. BACKGROUND

On November 17, 2016, Arellano was charged by information with: eight counts of possession of a firearm by a prohibited person, each count a Class ID felony pursuant to § 28-1206(3)(b); one count of possession of a controlled substance, a Class IV felony pursuant to § 28-416(3); and, two counts of possession of drug paraphernalia, each count an infraction pursuant to § 28-441.

On January 19, 2017, Arellano filed a motion in limine to exclude evidence that, at times relevant to this case, Arellano was subject to a protection order which prohibited him from possessing or purchasing a firearm. He argued that the State could not prove that the protection order had been properly served.

At a hearing on the motion, Arellano offered a copy of the protection order in Case CI 16-117, Morgan Graham v. Jose Arellano. He also offered a copy of an order in a separate case, Shimek v. Green, CI 16-510. The State made a relevance objection to the second order. Arellano stated that the second order showed the deputy in that case served a copy of the protection order marked with a certain document number, whereas in this case, the deputy certified that he served "a cover sheet with attachments." Thus, Arellano stated that there was not sufficient documentation showing he was served with the protection order. The State argued the attachments referred to in Arellano's case are specifically identified on the cover sheet, and the protection order was included.

On January 25, 2017, the district court found that the deputy's return sufficiently identified the attachments so that Exhibit 3 could be competent evidence regarding whether Arellano "had knowledge of the prohibition contained in the protection order." The court stated "Properly presented and offered, exhibit 3 would be admitted and the finder of fact could give it whatever weight considered appropriate."

Trial took place on February 7 and 8, 2017. Exhibit 3 was offered at trial as Exhibit 5. No objection was made to Exhibit 5. Arellano testified that a sheriff served him with a protection order and told him that he could not contact Morgan Graham. He said the sheriff did not tell him about the provision regarding the ownership or possession of guns. He said "I knew I had a protection order," but that he put the document in his filing cabinet without reading the document in detail.

Arellano testified that he purchased guns from a website, and when he picked them up from a local dealer he filled out a questionnaire. The form asked whether he was subject to a protection order and he "tried to fill out yes." He said he did not think that he was disqualified from purchasing guns. He asserted that when he tried to check "yes," the shop owner gave him a new copy of the form and told him to check "no." He specifically testified that he was aware that he was subject to a protection order, but he was not aware that he was prohibited from buying or having guns.

Following deliberations, the jury found Arellano guilty of eight counts of possession of a firearm by a prohibited person and not guilty of the remaining charges. The verdict was accepted by the court and judgment was entered on February 8, 2017.

On March 22, 2017, the district court sentenced Arellano to the mandatory minimum period of 3 years' imprisonment for each charge, with 95 days' credit for time served before sentencing. All sentences were ordered to run concurrently.

Arellano's motion for new trial was filed on March 22, 2017. Arellano asserted: there was irregularity in the proceedings of the court; the court abused its discretion, preventing him from receiving a fair trial; and, the verdict was not sustained by sufficient evidence. A hearing on the motion was held on March 28, 2017.

Arellano appeals from the March 22, 2017 sentencing order. His notice of appeal was filed on March 28.

III. ASSIGNMENTS OF ERROR

Arellano asserts the district court erred in denying his motion in limine and his motion for new trial. He asserts the district court erred in requiring the jury to continue to deliberate outside of the presence of counsel. He also asserts that he received ineffective assistance of counsel.

IV. STANDARD OF REVIEW

A ruling on a motion in limine is not a final ruling on the admissibility of evidence and therefore does not present a question for appellate review. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Filholm, supra.

V. ANALYSIS

1. MOTION IN LIMINE

Arellano asserts the trial court erred in denying his motion in limine, specifically regarding the admission of an exhibit, which was later marked as Exhibit 5. Exhibit 5 contains an ex parte domestic abuse protection order issued on February 25, 2016 preventing Arellano from having contact with the petitioner for one year from the date of issuance. The order also provided, in part, that Arellano was enjoined and prohibited from possessing or purchasing a firearm as defined in Neb. Rev. Stat. § 28-1201 (Reissue 2016).

At a hearing on Arellano's motion in limine to exclude the exhibit, he argued that it did not show that he was properly served with the protection order, thus he did not have notice that he was prohibited from purchasing or possessing firearms. The court determined that if the exhibit was properly presented and offered, it would be admitted and the finder of fact could give it whatever weight considered appropriate.

A ruling on a motion in limine is not a final ruling on the admissibility of evidence and therefore does not present a question for appellate review. State v. Schreiner, supra. Because overruling a motion in limine is not a final ruling on the admissibility of evidence and therefore does not present a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by anappropriate objection to the evidence during trial. State v. Glazebrook, 22 Neb. App. 621, 859 N.W.2d 341 (2015).

When Exhibit 5 was offered at trial, no objection was made to its admission. Failure to make a timely objection waives the right to assert prejudicial error on appeal. State v. Glazebrook, supra, citing State v. Cox, 21 Neb. App. 757, 842 N.W.2d 822 (2014). Thus, we find Arellano waived the right to argue the merits of the court's decision with regard to his motion in limine on appeal.

We note that Arellano argues his counsel was ineffective for failing to object to the offer of Exhibit 5 at trial. This argument will be addressed in further detail, below.

2. NEW TRIAL

Arellano asserts the court erred and abused its discretion in failing to grant his motion for new trial. He asserts the court allowed prejudicial evidence into the record and gave improper instructions to the jury outside of his presence or the presence of his counsel. He asserts that the court has the statutory authority to grant a new trial and that he is entitled to a new trial on the merits of this case.

A motion for a new trial in a criminal case is controlled by Neb. Rev. Stat. §§ 29-2101, et seq. (Reissue 2016). Section 29-2103 provides that a motion for new trial must be filed within 10 days after the verdict was rendered unless the basis for the motion is newly discovered evidence or newly discovered exculpatory DNA or forensic evidence. See State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999) See, also, State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993)(holding that motion for new trial not filed in conformity with statutory requirements as to time may not be considered on appeal). A motion for a new trial that is not filed within the time specified by statute is a nullity and of no force and effect. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976).

The verdict was rendered on February 8, 2017 and Arellano's motion for new trial was filed on March 22. His motion was not based upon newly discovered evidence. More than 10 days had passed from the rendition of the verdict, therefore his motion for new trial was not timely filed.

A hearing was held...