State v. Rowe

STATE OF NEBRASKA, APPELLEE, v. WILLIAM A. ROWE, APPELLANT.

No. A-16-1050.

NEBRASKA COURT OF APPEALS

October 10, 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 Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.

Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

INBODY, PIRTLE, and RIEDMANN, Judges.

PIRTLE, Judge.

I. INTRODUCTION

William A. Rowe appeals his convictions and sentences in the district court for Sarpy County for attempted robbery, terroristic threats, use of a firearm to commit a felony, and theft by shoplifting. On appeal, he asserts the prosecutor committed misconduct, there was insufficient evidence to support his convictions, and the sentences imposed were excessive. He further assigns several court errors with regard to objections, jury instructions, and motions. For the reasons that follow, we affirm.

II. BACKGROUND

On October 19, 2015, Rowe was charged by information in the district court for Sarpy County with four criminal counts: Count I, robbery, a Class II felony; Count II, terroristic threats, a Class IV felony; Count III, use of a firearm to commit a felony, a class IC felony; and, Count IV, aiding and abetting theft by shoplifting, $500 dollars or less. The amended information denotes Count IV is a Class IV felony, when, in actuality it was a Class II misdemeanor, this was corrected at sentencing. The original information was amended to reduce Count I to attempted robbery, a Class IIA felony. Rowe entered pleas of not guilty to all charges.

Trial began on August 9, 2016. Milea Ixta testified that on September 5, 2015, she was smoking methamphetamine with her boyfriend, Rowe. Rowe told her that he needed to get some concrete to complete a project at his mother's home on Jackson Street in Bellevue. Rowe asked Ixta if she would steal the concrete, and she agreed to try. Rowe drove Ixta to Menard's in Ralston in his red Land Rover. Ixta entered the store but was unable to steal the concrete because she could not lift the bags. She looked for something she could shoplift for Rowe to sell to get the money he needed for the concrete. She shoplifted two security cameras.

Ixta returned to Rowe's car and showed him the cameras. He thought he could sell them, but also considered using them in his home. He asked Ixta to steal more cameras and she agreed. After leaving Menard's, Rowe and Ixta drove to a friend's house to buy methamphetamine. Ixta testified that Rowe's shirt rode up as he reached for money and he exposed a handgun tucked into his waistband. Ixta said "I didn't know that you had a gun with you," and Rowe replied, that it was "the .380." Ixta knew Rowe referred to a Kal-Tec .380 automatic handgun because he had shown it to her in the past.

As they drove to the Bellevue Menard's, Rowe and Ixta discussed the plan to enter the store separately. Rowe was going to buy cement while she shoplifted more cameras and then they planned to meet back at the Land Rover. Rowe parked the Land Rover and he and Ixta entered the store. Ixta carried a large purse and walked to the aisle where the security cameras were displayed.

Two loss prevention officers, David Jarvinen and Zach Baxter, monitored various areas of the store on closed circuit TVs in the security office. They observed Ixta remove a security camera from the shelf, and then put it back on the shelf. Then she looked around, removed two security cameras from the shelf, and left the aisle. Her behavior, the large purse, and an empty bag she acquired inside of the store led Jarvinen to suspect Ixta may try to steal the cameras. The cameras were known to be "high theft items," which are expensive and frequently shoplifted.

As Ixta walked to the front of the store, she placed a camera inside the black bag and one in her purse Jarvinen monitored Ixta from the security office while Baxter followed Ixta on foot. Ixta also placed two bags of beef jerky inside the black bag. Ixta pushed a cart containing several items to the cash registers as though she intended to pay for the items. She walked away from the cart without paying and walked toward the exit. Jarvinen called Baxter and told him to wait outside for her.

Baxter positioned himself outside of the exit and waited for Ixta. Baxter walked up to her, identified himself, and asked her to accompany him back into the store to discuss the items she had stolen. Ixta attempted to push past Baxter, who struggled to detain her. Baxter and Jarvinen grabbed Ixta's arms and wrestled her to her knees. They attempted to place her in handcuffs, but she broke free and struck Baxter in the back of the head with the handcuffs.

Ixta began yelling for help. Jarvinen saw a man in a red Land Rover SUV pull up to the door and stop. Ixta told Jarvinen and Baxter that Rowe was her boyfriend and that he had a gun.Jarvinen instructed Baxter to approach Rowe to try to calm him down. As Baxter walked toward the Land Rover, Rowe exited the driver's side door and walked to the front of the car.

Ixta began yelling at Rowe to "show them the gun." Ixta, Baxter, and Jarvinen testified that Rowe raised his shirt and exposed a black handle tucked into the left side of his waistband for approximately 5 to 10 seconds without saying a word. Upon seeing this, Baxter yelled "gun" and backed away from Rowe. Jarvinen released Ixta and raised his hands in the air. Ixta put the bags on the ground and abandoned the stolen property. She and Rowe entered the Land Rover and fled. Baxter noted the license plate number and called the police.

Both loss prevention officers testified that they are familiar with guns and believed the object in Rowe's waistband to be a gun. Jarvinen testified that he felt unsafe and understood Rowe's action, lifting his shirt to show that he had a gun, to be a threat. At trial, Jarvinen and Baxter identified Rowe as the man who assisted Ixta.

Ixta testified that as they drove away from Menard's Rowe was upset and cussing. He said he needed to go to his mom's house. When they were near his mother's home, they saw a police car parked in front so they drove away. They discarded the methamphetamine they had purchased that day and discussed hiding. Rowe stopped at Gilbert Park in Bellevue to let Ixta out of the car. She ran to a nearby house and hid underneath the porch.

At approximately 5:28 p.m. Officers Justin Pestel and Mike Brazda of the Bellevue Police Department were dispatched to Jackson Street to investigate an intrusion alarm. En route to the house, they received a second dispatch regarding a robbery at Menard's. They learned that the red Land Rover involved in the robbery was registered to a person living at the same address on Jackson Street, and they set up surveillance at the house. Officer Pestel observed the car traveling toward them and attempted to follow it. He momentarily lost sight of the car, but eventually found it parked on a dead end road.

Rowe was ordered from the vehicle and taken into custody. No gun was found on Rowe's person or inside of his vehicle. The two security cameras Ixta took from Menard's in Ralston were found in the back seat of Rowe's car. When officer Brazda questioned Rowe he provided a false name for Ixta and said he had encountered her at a gas station and agreed to give her a ride to Menard's. He said he helped the woman escape from two men who had accosted her at Menard's. Brazda noted that Rowe was "extremely nervous" throughout the contact and appeared to be lying. At trial Pestel and Brazda identified Rowe as the man driving the red Land Rover on September 8, 2015.

Ixta was apprehended by the police and agreed to cooperate with the State. Her agreements were admitted into evidence and contain a provision noting that the State agreed to inform the judge at sentencing of the nature and extent of Ixta's cooperation.

Following the presentation of evidence, a jury instruction conference was held. Rowe objected to multiple jury instructions, which will be discussed in more detail below. Rowe requested an instruction regarding self-defense, defense of others, and choice of evils. The court declined to provide these instructions, finding they were not supported by the evidence.

During closing arguments the prosecutor made several statements which Rowe alleges, on appeal, amounted to prosecutorial misconduct. Toward the end of the initial summation, the prosecutor stated:

Officer Brazda. We talked for about 40 minutes about felony traffic stops. What do felony traffic stops have to do with attempted robbery, shoplifting, terroristic threats, and use of a weapon?

It's called a red herring. It's called look over here. Don't look at the facts of what we're talking about. We spent 45 minutes talking about do you have your gun up? What does it matter how Officer Brazda's assault rifle was carried back to the car and placed in the cruiser?

It doesn't. It's a red herring. Look over here. We're dancing over here. Don't look at the evidence. Don't look at any of it. Don't look at it over here because we are going to talk about a felony traffic stop and what the protocol is, and all that, because it doesn't matter, because it's look over here, not at the evidence.

During his closing argument, Rowe's counsel attacked the credibility of Ixta. He argued that upon seeing Ixta being accosted by two men he lifted his shirt, which may have been a reckless decision, but did not amount to terroristic threat. He argued that he did not know they were loss prevention officers, and he observed Ixta being accosted by two unknown men, as she screamed for help.

On rebuttal, the prosecutor cited several facts corroborating Ixta's testimony and argued that Ixta had no motivation to lie. The prosecutor urged the jury to...