State v. Nguot, A-18-095.

STATE OF NEBRASKA, APPELLEE, v. DENG L. NGUOT, APPELLANT.

No. A-18-095.

NEBRASKA COURT OF APPEALS

March 5, 2019

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 Douglas County: KIMBERLY MILLER PANKONIN, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Ann O. Hayden for appellant.

Douglas J. Peterson, Attorney General, and, on brief, Sarah E. Marfisi for appellee.

MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Deng L. Nguot appeals his conviction and sentence in the district court for Douglas County following a jury trial for robbery, terroristic threats, and use of a deadly weapon, other than a firearm, to commit a felony. Nguot claims on appeal that the court erred in admitting certain evidence, overruling his motion for mistrial, and instructing the jury. He also asserts that the court imposed an excessive sentence. Finding no merit to Nguot's assigned errors, we affirm.

BACKGROUND

On May 11, 2017, the State filed an information in the district court, charging Nguot with robbery in violation of Neb. Rev. Stat. § 28-324 (Reissue 2016), a Class II felony, and terroristic threats in violation of Neb. Rev. Stat. § 28-311.01 (Reissue 2016), a Class IIIA felony. The State subsequently filed an amended information adding a third charge of use of a deadly weapon, other than a firearm, to commit a felony in violation of Neb. Rev. Stat. § 28-1205(1)(b) (Reissue 2016), a Class II felony.

A jury trial was held November 13-15, 2017. The State offered testimony from law enforcement officers and personnel involved in the investigation in this case, the victim, and an associate of the victim. The State also offered various photographs, surveillance footage, and text message evidence that was received by the district court. Nguot did not testify, but he offered testimony from his girlfriend.

The charges against Nguot in this case arose from an incident that occurred in the parking lot of a banquet hall in Omaha, Nebraska, where the owner, Kokoui Gui Dosseh, sometimes hosts after-hours parties and fundraisers. The victim in this case, Koffi Amefia Koffie, is an associate of Dosseh's and manages the building for him. On the night of April 8, 2017, there was a fight during an event at the banquet hall, and Nguot, one of the participants in the fight, was ejected from the building. According to Dosseh, fighting results in a lifetime ban from his properties and events.

Dosseh's phone number is posted on the door to the banquet hall to allow people to call him directly if "anything happen[s] at the place." On April 9, 2017, when Dosseh was at home, he received a phone call from a number he did not recognize. According to Dosseh, the caller identified himself as "Deng something" and talked about "what really happened" the previous night. When the caller referred to "last night," Dosseh understood that he was referring "[t]o the fight" and "kicking him out." Dosseh asked the caller to send a picture of himself to Dosseh so Dosseh could "figure out who he is," and in response, Dosseh received a text message photograph of a man and a text stating "thay [sic] me." The record does not show whether Dosseh received the text message while still on the phone with the caller. At trial, Dosseh identified exhibits 1 and 2 as copies of the text message and photograph that he received, and he identified the man in the picture as Nguot. In the photograph, Nguot is wearing a white shirt with black lettering and appears to be sitting inside a reddish colored car. The text message reflects a time and date stamp of "Sun, Apr 9, 12:27 p.m." Dosseh was asked about the phone number reflected at the top of the text message and he testified that this was the number that called him, but he also testified, "That was the problem though, I think we was talking on the phone and I said, I know that number. And he was trying to say like he's got to send me a picture, I do not know that number." When the State offered exhibits 1 and 2, Nguot's attorney objected as follows, "Your Honor, I'd object on foundation, especially following the new testimony that the numbers from the phone call that he received and the phone call he received the photo did not match." The district court received exhibits 1 and 2 over Nguot's objection.

The banquet hall is equipped with a surveillance camera system that Dosseh is able to watch remotely. As Dosseh was speaking to the caller on the phone, he observed a person and "a red SUV" in the parking lot of the banquet hall via the remote access to his surveillance system. After Dosseh observed the person "walking out along the building" and approaching a car in the parking lot, he contacted Koffie, who was still at the banquet hall, and asked him "to step out and talk to him." Dosseh continued to monitor the surveillance system, and he observed Koffie running. Dosseh tried to call Koffie, but when Koffie did not respond, Dosseh called the police.

Koffie testified about the fight at the banquet hall on the evening of April 8, 2017, and at trial, he identified Nguot as having been one of the participants in the fight. Koffie spent the night of April 8 in the banquet hall and was still there the next day when Dosseh contacted him. Afterreceiving Dosseh's call, Koffie stepped outside the banquet hall and saw Nguot, whom he recognized from the night before. According to Koffie, Nguot was "going back and forth on [sic] the parking lot" and approached as soon as he saw Koffie. Nguot began to speak about the fight that occurred the night before, and he became agitated and wanted to speak with Dosseh. Koffie testified that he took out his cell phone to call Dosseh but that as soon as he turned around, Nguot began to punch him. Koffie dropped his cell phone while trying to defend himself. According to Koffie, Nguot continued to punch him in his head and ears and told Koffie that he would kill him. Koffie also indicated that in addition to threatening to kill him, Nguot used profanities and racial slurs during the attack. Koffie testified that "when my cellphone fall [sic] he grabbed the phone and he told me that I wouldn't get my phone back."

Koffie testified that at some point, Nguot ran to a red car, occupied by another individual, and retrieved a metal object "like a wrench or something -- those tools you used to fix tires." Koffie approached Nguot, but Nguot walked toward Koffie with the metal object, continued to utter profanities and racial slurs, and tried to hit Koffie, so Koffie stepped back. Nguot then approached a car belonging to Koffie's girlfriend, which was parked in the banquet hall parking lot and asked if it was Dosseh's car before beginning to smash the car's windows. At some point, Koffie ran toward the street looking for help.

During his trial testimony, Koffie was shown exhibit 1, the photo sent to Dosseh by text message. Koffie testified that he recognized the person depicted in the photo as Nguot, and he confirmed that the person depicted in the photo was the same person who threatened and punched him and took his phone.

A copy of the security video from the surveillance system at the banquet hall for the period between 12:17 p.m. and 12:55 p.m. on April 9, 2017, was received into evidence. The view on the video shows the parking lot in front of the banquet hall, and there is a blue car parked in front of the banquet hall throughout the video. At about 12:20 p.m., an individual in a white shirt with some words in black lettering on it, dark jeans, and red and white shoes appears on the video outside the banquet hall. One of the investigating police detectives testified that the white shirt with black lettering in the video was consistent with the shirt Nguot is wearing in the photograph sent via text message to Dosseh. On the video, the individual walks back and forth in and out of camera view a few times over the course of about 5 minutes, and he can be seen speaking on a phone at one point. When the individual's back is to the surveillance camera, black lettering is visible on the back of the white shirt. After this 5-minute period, no activity is visible on the video until about 12:43 p.m. when a red car drives into view and stops in the parking lot. The surveillance video shows an individual in what appears to be the same jeans and red and white shoes but now wearing a long-sleeved red shirt exit from the driver's side of the red vehicle, walk toward the banquet hall, and disappear from view. The police detective testified that the shoes, pants, and build of this individual were consistent with those of the individual previously seen on camera in the white shirt with black lettering.

At about 12:46 p.m., the person in the red shirt walks back into view and gets back into the red car, which circles the parking lot before the person in the red shirt again gets out and walks toward the banquet hall, disappearing from view a second time. At about 12:52 p.m., a bobbing head can be seen in the bottom right corner of the video, and the person in the red shirt appears on camera chasing a person in a dark shirt. The person in the red shirt retrieves something from thered vehicle and begins hitting the parked blue car with an object. The person with the dark shirt advances with his arms stretched out toward the person hitting the blue car. The person in the red shirt moves toward the person in the dark shirt, and the person in the dark shirt turns and runs out of view. The person in the red shirt appears to take several photos with a device before entering the driver's door of the red car and quickly driving away, although from the video it is not possible to tell whether he was taking pictures of the damaged vehicle or of himself.

Police arrived on the scene, interviewed Koffie, and...