State v. Pierce

State of Nebraska, appellee, v. Dustin S. Pierce, appellant.

No. A-21-679

Court of Appeals of Nebraska

April 5, 2022

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 Nemaha County: Julie D. Smith Judge. Affirmed.

Keith M. Kollasch, Nemaha County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Moore Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

I. INTRODUCTION

Following a bench trial in the Nemaha County District Court, Dustin S. Pierce was convicted of one count of leaving the scene of a personal injury accident resulting in serious bodily injury and one count of tampering with physical evidence. On appeal, Pierce claims the district court erred in overruling his objections to the testimony of the State's accident reconstruction expert witness and in failing to sufficiently explain its rationale in overruling those objections. He also asserts that there was insufficient evidence to support his convictions. We affirm.

II. BACKGROUND

1. Factual Background

On June 23, 2020, the State filed an information charging Pierce with count I, leaving the scene of a personal injury accident, a Class III felony, in violation of Neb. Rev. Stat. § 60-697 (Cum. Supp. 2018), and count II, tampering with physical evidence, a Class IV felony, in violation of Neb. Rev. Stat. § 28-922 (Cum. Supp. 2020).

The charges in this case stem from a motor vehicle accident occurring on May 10, 2020, in Nemaha County, Nebraska. That evening, between 8 and 8:20 p.m., Katelynne Moore left her home to go for a walk along a road going east (the bypass) just outside of Auburn, Nebraska. During her walk, she sent her husband a text message just after 8:15 p.m. Between that time and approximately 9 p.m., Moore was struck by an automobile while she was walking along the bypass.

Just after 9 p.m., a high school student discovered Moore lying unconscious in the ditch on the north side of the bypass as well as multiple pieces of debris scattered nearby. He had left his home at approximately 8:45 p.m. to go for a bike ride, and as he initially traveled east along the bypass, he did not observe any person or debris in the road. About 8 minutes after he left his home, he observed a "gray car" traveling southbound on an intersecting road, and the gray car turned west at the bypass intersection towards Auburn. The student continued biking east for approximately 7 minutes before turning around to return to Auburn, and he observed a red truck just before beginning the return trip. As he drew closer to Auburn, he noticed a pair of glasses and several "car parts" in the road, and as he looked around, he saw Moore unconscious in a ditch on the north side of the road.

The student flagged down an approaching vehicle for assistance, and emergency services were contacted. Upon their arrival, emergency responders began rendering aid. According to witnesses present at the scene of the accident, it was generally dark but still light enough to see without flashlights or other artificial light. Moore remained unconscious and unresponsive despite the paramedics' efforts, and she exhibited numerous abrasions on her body, a "severe laceration" on the back of her head, and bleeding from her ear. She was immediately transported to a local hospital for emergency care and subsequently transferred to a different hospital for continuing care and treatment. The trauma surgeon responsible for Moore's care described that her injuries were consistent with a pedestrian struck by a motor vehicle and "involved a substantial risk of death."

Early the next morning, law enforcement secured several car parts found at the accident site, including a broken passenger-side headlight and various internal and external pieces. Based on serial numbers identified on the various parts, law enforcement believed the vehicle involved in this accident to be a "2010 to 2012 Ford Fusion with a gray bumper." This description was used to identify local individuals whose vehicle registration matched this description. Pierce, who owned a gray 2011 Ford Fusion, was subsequently identified as a suspect in this case. On May 13, 2020, law enforcement executed a search warrant of the one-car garage attached to Pierce's residence in an effort to locate his vehicle. The garage had an overhead garage door without an external mechanism to open the door, an outside back door, an internal door leading into the residence, and two windows. Law enforcement was initially unable to open the back door, and the windows were covered by black plastic bags taped to the window frames. Entering the garage through a window, law enforcement discovered that the garage's back door had been effectively locked by a "piece of wood . . . screwed into the doorjamb," in addition to several items blocking the door from the inside such as rocks and pieces of equipment.

After gaining access to the garage, law enforcement located Pierce's vehicle. The vehicle had substantial damage to its front side exterior; the passenger-side headlight was missing, the hood had numerous indentations, portions of the vehicle's frame underneath the missing headlight were also missing, and the vehicle's internal mechanisms were exposed. The windshield had also been fractured on the passenger side, and the "A-pillar" of the passenger door had a significant indentation next to the windshield fracture. Law enforcement took numerous photographs of the damage to Pierce's vehicle, and these photographs are included in the record.

That same day, law enforcement interviewed Pierce. Pierce initially stated that he had not struck anything on the bypass. Rather, he claimed that he hit a deer earlier on May 10, 2020, as he was driving back to Auburn from Rockport, Missouri. He described that he was driving on "Highway 136" at approximately 70 miles per hour, and the deer "impacted the front of [his] car, flipped up the hood, hit the windshield, . . . landed on all fours," and ran off before Pierce could bring his vehicle to a complete stop with "no blood on the highway [and] no blood [or fur] on [his] car." He acknowledged that he took the bypass into Auburn that evening in order to avoid law enforcement "because [he] had a headlight out."

Upon further questioning by the two law enforcement officers interviewing him, Pierce conceded that he "made . . . up" the deer collision and had in fact hit something on the bypass just outside of Auburn, but he "didn't know what he hit" because he was looking at his cell phone at the time of the impact. He recalled that he did not stop after the collision because he thought he had hit a "coyote," a "deer," or some other animal. Immediately after the impact, Pierce observed part of his passenger side headlight detach from his vehicle in his passenger-side mirror and felt what he believed to be his "fender" go underneath his vehicle. He stated that it was "getting dark" at the time of the impact, and he stopped at two convenience stores before going home. Pierce emphasized that he did not know what he hit, and he did not report the impact due to his fear of a "shakedown" by law enforcement.

2. Trial

A bench trial was held on May 13 and 14, 2021. The State called multiple witnesses to testify, and Pierce testified on his own behalf. Most of the witnesses called by the State testified to matters we have previously described, and we set forth summaries of those witnesses who testified to matters not yet discussed as relevant to the issues on appeal.

(a) Megan Culver

Megan Culver (Megan) was Pierce's girlfriend at the time of the accident, although they had separated by the time of trial. She previously lived with Pierce, and she testified that Pierce left the residence during the afternoon of May 10, 2020, to travel to Missouri. At approximately 8:55 p.m. on May 10, Pierce called her from a convenience store and told her that "he hit a deer . . . and . . . wasn't sure if he was going to be able to" pick up the sandwiches they had ordered that night before returning home. Megan noted that Pierce was "upset" when he came home, and she attributed this to the damage to his vehicle.

The following day, Pierce told Megan that he hit the deer "between Brownville and Peru" on Highway 136 and "saw the deer stagger away." Pierce also told Megan that his sister informed him that "a woman . . . had been hit" in "a hit-and-run" on the bypass and "the rumor was that [Pierce] had hit a person on the [bypass]." Megan testified that Pierce became "very, very distraught and scared" after the conversation with his sister, and he later put garbage bags over the garage windows after a phone call with his father. Pierce thereafter left with his father "to see the scene of the accident" on the bypass; Megan did not go with them. Pierce, his father, and Megan later drove together to Missouri, and Pierce pointed out "two separate locations" "off of Highway 136" where "he had hit the deer the night before."

The next day, May 12, 2020, Megan recalled that she and Pierce discussed the damage to his vehicle. He drew her attention to the fractures on his windshield and "pointed [to] where the antlers probably went through the windshield," although she "didn't pay much attention" because she was in "a lot [of] distress" and "just wanted to believe" what he told her. At some point after this conversation, Megan told Pierce "that he should go talk to law enforcement," and he became "very upset" at that suggestion.

(b) Sheriff Brent Lottman

Nemaha County Sheriff Brent Lottman was called to testify as an "accident reconstruction"...