State v. Heath

21 Neb.App. 141

838 N.W.2d 4

State of Nebraska, Appellee,

v.Mathew J. Heath, Appellant.

No. A–12–742

Court of Appeals of Nebraska.

Filed August 13, 2013

Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only where the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Hearsay: Words and Phrases. Under the Nebraska Evidence Rules, hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

3. Rules of Evidence: Hearsay. With certain exceptions, hearsay is generally not admissible.

4. 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 ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

5. Rules of Evidence: Hearsay: Words and Phrases. A “statement,” for purposes of the Nebraska Evidence Rules, is an oral or written assertion or nonverbal conduct of a person, if it is intended by him or her as an assertion.

6. Rules of Evidence: Hearsay. Even if proffered testimony concerns a “statement” under Neb. Rev. Stat. § 27-801(1) (Reissue 2008), it is not excluded as hearsay unless the statement is being offered to prove the truth of the matter asserted. Thus, if there is a nonhearsay purpose for admitting the statement, it is not inadmissible as hearsay.

7. Constitutional Law: Criminal Law: Trial: Witnesses. The Confrontation Clause, U.S. Const. amend. VI, provides, in relevant part, that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her.

8. Constitutional Law: Trial: Hearsay. Where “testimonial” statements are at issue, the Confrontation Clause demands that such out-of-court hearsay statements be admitted at trial only if the declarant is unavailable and there had been a prior opportunity for cross-examination.

9. Constitutional Law: Hearsay. The Confrontation Clause applies only to testimonial hearsay, because it applies only to witnesses who bear testimony against an accused.

10. Constitutional Law: Hearsay. The initial step in a Confrontation Clause analysis is to determine whether the statements at issue are testimonial in nature and subject to a Confrontation Clause analysis. If the statements are nontestimonial, then no further Confrontation Clause analysis is required.

11. Trial: Hearsay. Generally speaking, testimonial statements include ex parte in-court testimony or its functional equivalent (affidavits, custodial examinations, prior testimony); extrajudicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony, confessions); or those statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

12. Constitutional Law: Witnesses: Testimony: Words and Phrases. The text of the Confrontation Clause applies to those who bear testimony, and testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.

13. Constitutional Law: Hearsay. The primary objective of the Confrontation Clause is concerned with testimonial hearsay.

14. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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.

15. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence.

16. Assault: Police Officers and Sheriffs: Words and Phrases. A person commits the offense of third degree assault on an officer if (1) he or she intentionally, knowingly, or recklessly causes bodily injury to a peace officer and (2) the offense is committed while such officer is engaged in the performance of his or her official duties.

17. Arrests: Police Officers and Sheriffs: Words and Phrases. A person commits the offense of resisting arrest if he or she uses or threatens physical force or violence against a peace officer while intentionally preventing or attempting to prevent the peace officer from effecting an arrest of the actor or another.

18. Arrests: Words and Phrases. An arrest is taking custody of another person for the purpose of holding or detaining him or her to answer a criminal charge, and to effect an arrest, there must be actual or constructive seizure or detention of the person arrested.

19. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

20. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

21. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

Irwin, Judge.

I. INTRODUCTION

Mathew J. Heath appeals his convictions and sentences on charges of third degree assault on a law enforcement officer and second-offense resisting arrest. The charges arose out of an altercation occurring when a police officer responded to a disturbance call at Heath's residence. Heath asserts that the district court erred in allowing testimony that his mother asked the officer whether the officer was alone, and also challenges the sufficiency of the evidence to support the convictions and the sentences imposed by the court. We find that his mother's question was not excludable as hearsay and find sufficient evidence to support the convictions. The sentences imposed were not excessive. As such, we find no merit to Heath's appeal, and we affirm.

II. BACKGROUND

The events giving rise to this action occurred on or about January 13, 2012. On that date, Officer Alan Grell of the Lincoln Police Department was on duty and heard a dispatch concerning a “ ‘[d]isturbance, nature unknown,’ ” at a residence near where he was on patrol. Because he was in the area, he responded to the dispatch and went to the residence.

Officer Grell testified that he approached the residence, looked in the window to see whether he could observe anything going on, and, either before or after he knocked on the door, heard a male voice from inside the residence say, “ ‘Go away. We're cleaning.’ ” At that point, Officer Grell could not see in any windows, did not hear any loud disturbance, and was unaware of how many people were inside the residence.

Officer Grell testified that he knocked on the door and that a female answered the door. The female asked Officer Grell whether he was alone. Officer Grell was alone, and the female allowed him to enter the residence.

Upon entering the residence, Officer Grell was met by Heath, who immediately directed him to leave the residence and poked him in the chest. Officer Grell testified that Heath was holding a cigarette in the same hand that he used to poke Officer Grell in the chest. Officer Grell directed Heath to stop and to “ ‘get back,’ ” but Heath ignored the direction. Officer Grell then reached out to grab Heath's hand, and a physical altercation between the two ensued.

1. Officer Grell's Description of Altercation

According to Officer Grell's description of the altercation, Heath was “[o]bviously agitated, [and his] voice inflection was kind of high, kind of raised,” as Heath told Officer Grell to leave the residence “several times.” Heath reached out and pushed him in the chest area, causing Officer Grell to take “a side step.” Officer Grell testified that he then tried to gain control of Heath's hands and pushed Heath, attempting to knock Heath off balance. As the two were “shoving each other back and forth” and trying to gain control, Heath at one point “reached down with his left hand and [put] his hand on [Officer Grell's] service weapon.”

Officer Grell testified that “things escalate[d] quite dramatically” when Heath reached for the service weapon. Officer Grell then continued trying to gain control, while also keeping a hand on his service weapon to try “to keep it in the holster.” Heath eventually shoved Officer Grell, and the two tripped over “some large tires and some large rims in the living room of the residence.” The two ended up on the ground, with Heath on top of Officer Grell.

Officer Grell testified that the two eventually returned to their feet, still struggling with one another. Eventually, Officer Grell was able to utilize a “strength technique” to gain control, and he “basically grabb[ed Heath] by the throat or the upper neck area ... and [shoved] him as hard as [Officer Grell could], to knock [Heath] off balance.” This was successful in knocking Heath off his feet, causing him to stumble...