State v. Jones, S-15-370.

STATE OF NEBRASKA, APPELLEE, v. LARON M. JONES, APPELLANT.

No. S-15-370.

COURT OF APPEALS OF NEBRASKA

April 28, 2016

OPINION OF THE SUPREME COURT OF NEBRASKA

NOTICE: DUE TO UNFORESEEN CIRCUMSTANCES, THIS OPINION IS BEING POSTED TEMPORARILY IN "SLIP" OPINION FORM. IT WILL BE REPLACED AT A LATER DATE WITH AN "ADVANCE" OPINION, WHICH WILL INCLUDE A CITATION.

Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Jessica C. West for appellant.

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

1. Jury Instructions: Judgments: Appeal and Error. Whether the jury instructions given by a trial court are correct is a question of law. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

2. Criminal Law: Evidence: Appeal and Error. 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.

3. ___: ___: ___. The relevant question when an appellate court reviews a sufficiency of the evidence claim 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.

4. Sentences: Words and Phrases: Appeal and Error. An appellate court reviews criminal sentences for an abuse of discretion, which 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.

5. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress, the defendant, to preserve the issue on appeal, must object at trial to the admission of the evidence which was the subject of the suppression motion.

6. Appeal and Error. Asserting or arguing plain error does not relieve a defendant of properly preserving errors for appellate review.

7. ___. Plain error exists where there is error, plainly evident from the record but not complained of at trial, that prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

8. ___. Where an issue is raised and complained of at trial, it cannot be the basis of a finding of plain error on appeal.

9. Jury Instructions: Proof: Appeal and Error. 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.

10. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, an appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

11. Sentences. In 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 offense.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ., and MOORE, Chief Judge.

WRIGHT, J.

I. NATURE OF CASE

Following a jury trial, Laron M. Jones was convicted of first degree murder, use of a deadly weapon (firearm) to commit a felony, and possession of a deadly weapon by a prohibited person for the shooting death of Brandon Samuels. He was sentenced to life imprisonment for murder, and consecutive terms of 10 to 20 years' imprisonment on each of the other two convictions. Finding no merit to the errors assigned on appeal, we affirm Jones' convictions and sentences.

II. BACKGROUND

1. EVENTS SURROUNDING SHOOTING

In the early morning hours of March 7, 2014, a group of friends gathered at the home of Alanna Delaney for an "after-hours" party. Those in attendance included Delaney; Saraha Richards; Jamie Thiem; Dale Gaver; Josue Sanchez; Giovanni Barrios; D'Angelo Goods; and the decedent, Samuels, among others. Around 2:30 a.m., three black males and one black female arrived uninvited at the party. One of the black males was Milton Butler, who came to the party to confront Thiem, his ex-girlfriend and the mother of his child. One of the black males was identified as Jones. The other black male and black female were never identified.

Butler barged into the residence and began yelling at Thiem. Then he pulled her out of the house by her hair, banging her head against a doorframe on the way out. Others at the party were concerned and followed them outside. Sanchez came to Thiem's aid, and a fight ensued in the front yard with Butler, Jones, and the unidentified black male teaming up against Sanchez. Jones brandished a gun and stated that anyone who jumped in to help Sanchez would be shot. The fight dissipated after Sanchez was knocked unconscious and taken back into the house by his friends.

Butler, Jones, and the unidentified black male and black female got into their vehicles and began leaving the scene. Most of the people from the party went back inside the house. As Butler was backing his vehicle out of the driveway, Goods came outside to retrieve something from the front yard. Butler then stopped his vehicle, got out, and began a second altercation with Goods. Just as the altercation was about to turn physical, several shots were fired into the air, followed by a pause, and then several more shots were fired toward the house. Samuels was standing on the porch and suffered gunshot wounds in his lower right leg and in the right side of his neck. He died from those injuries.

2. WITNESS TESTIMONY

(a) Alanna Delaney

Delaney testified that during the initial altercation with Sanchez, an individual she knew as "Clown" flashed a gun from his waistband and told her not to interfere with the fight or she would be shot. She was standing in the middle of the yard when shots rang out. Gaver pushed herto the ground and told her to stay down. While lying on the ground, she lifted her head and clearly observed "Clown" shooting the gun toward the porch.

Delaney testified that she was familiar with both "Clown" and Butler and that there was no doubt in her mind it was "Clown" shooting the gun, not Butler. Delaney knew Butler due to Butler's relationship with Thiem, and she had met him approximately 5 to 10 times. She was familiar with "Clown" from having met him at a location she described as a haunted house and a couple of times at her house or a bar when he was with Butler. Delaney described Butler as "skinnier" and having a "fade or a brush cut" hairstyle. By contrast, Delaney stated that "Clown" was "thicker," and she described his hairstyle as "French braided to the scalp." She stated that "Clown" was wearing a black T-shirt and blue jeans. Delaney identified Jones in court as "Clown."

(b) Saraha Richards

Richards knew Butler through Thiem and described him as being skinny and having short hair. She had also met "Clown" on a couple of prior occasions, including a New Year's Eve party approximately 3 months prior to this incident. She described "Clown" as similar in height to Butler, but "heavier." Richards stated that before the shooting occurred, "Clown" said that if anyone interfered with the fight that was going on, that person was going to get shot. She said that "Clown" fired the first few shots in the air, then lowered the gun and started shooting at the house. Richards identified Jones in court as "Clown."

(c) Dale Gaver

Gaver testified that he saw "Clown" display the gun prior to the shooting and then observed him fire the gun three times into the air. Gaver started running toward the side of the house and heard more shots fired. As he got to the corner of the house, he turned around and saw "Clown" aiming and shooting the gun at the house. He explained that although it was dark outside, he could see what was going on because a street light was on, and that he was only about 10 feet away when he observed "Clown" flash the gun. Gaver described "Clown" as wearing a hoodie and a darker shirt. Gaver stated that "Clown" was wearing a hat initially, but was no longer wearing the hat once he became involved in the altercation with Sanchez. Gaver identified Jones in court as "Clown."

(d) D'Angelo Goods

Goods described the shooter as shorter and stockier with "nappy" braided hair that looked as if it had not been freshly done. Goods testified that during his altercation with Butler, the shorter, stockier individual approached the yard and asked, "'What's up?'" Goods observed the man firing shots into the air, then aiming and shooting at the house. He did not see Butler or anyone else with a gun, other than the stockier black male with nappy hair.

(e) Giovanni Barrios

Barrios testified that he attempted to stop the fight, but that one of the black men flashed a gun and told him to back up. Barrios described this man as having a "[b]igger build, stockier, facial hair" and wearing jeans and a hoodie. Barrios identified Jones in court as that man.

3. INVESTIGATION

The witnesses were separated at the scene and individually transported to police headquarters to be...