State v. Scott

284 Neb. 703

824 N.W.2d 668

STATE of Nebraska, Appellee,

v.Steven D. SCOTT, appellant.

No. S–11–894.

Supreme Court of Nebraska.

Nov. 30, 2012.

Syllabus by the Court

[284 Neb. 703]1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which the Nebraska Supreme Court is obligated to reach conclusions independent of those reached by the court below.

2. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.

3. 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 when the rules make such discretion a factor in determining admissibility.

4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

5. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

6. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion.

7. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.

8. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

9. 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. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact.

10. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.

11. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of constitutionality.

12. Constitutional Law: Statutes: Appeal and Error. As a general rule, in a challenge to the overbreadth and vagueness of a law, a court's first task is to analyze overbreadth.

13. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and thus offends the First Amendment if, in addition to forbidding speech or conduct which is not constitutionally protected, it also prohibits the exercise of constitutionally protected speech. A statute may be invalidated on its face, however, only if its overbreadth is “substantial,” i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies. Stated another way, in order to prevail upon a First Amendment facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is “substantially” overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.

14. Criminal Law: Intent. Mens rea should apply to each of the statutory elements which criminalize otherwise innocent conduct.

15. Criminal Law: Intent.Neb.Rev.Stat. § 28–1351 (Cum.Supp.2012) requires that at the time of an alleged violation, the defendant had actual knowledge that members of a group engage in or have engaged in any of the specified criminal activities for the benefit of, at the direction of, or on behalf of the organization, group, enterprise, or association or any of its members.

16. Constitutional Law: Criminal Law: Statutes.Neb.Rev.Stat. § 28–1351 (Cum.Supp.2012) is not so overbroad as to infringe First Amendment rights of association.

17. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

18. Constitutional Law: Statutes: Standing. To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and furthermore cannot maintain that the statute is vague when applied to the conduct of others. A court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court. The test for standing to assert a vagueness challenge is the same whether the challenge asserted is facial or as applied.

19. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material. The defendant must prove that the alleged error actually prejudiced him or her, rather than created only the possibility of prejudice.

20. Trial: Due Process: Evidence. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith or the prosecution.

21. Evidence: Words and Phrases. Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

22. Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant.

23. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

24. Judges: Trial. As a general rule, a judge is required to be present at all stages of a trial.

25. Judges: Trial. The temporary absence of the trial judge is not reversible error unless the defendant shows prejudice resulting from the absence.

26. Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.

27. Appeal and Error: Words and Phrases. Plain error is error of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

Steve Lefler, of Lefler & Kuehl Law, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

Steven D. Scott appeals his convictions for second degree assault, use of a deadly weapon to commit a felony, and unlawful membership recruitment into an organization or association, a Class IV felony under Neb.Rev.Stat. § 28–1351 (Cum.Supp.2012). Scott claims that the district court for Douglas County erred with respect to numerous evidentiary and other trial rulings and when it rejected his constitutional challenges to § 28–1351. We affirm Scott's convictions. We reject Scott's argument that the district court imposed excessive sentences, but we note plain error in Scott's sentencing, wherein the sentencing court erroneously ordered the sentence for use of a deadly weapon to be served concurrently with the sentence for unlawful recruitment. We therefore vacate Scott's sentences and remand the cause to the district court to resentence so that the sentence for use of a deadly weapon is ordered to run consecutively to the other sentences imposed.

STATEMENT OF FACTS

The charges against Scott arose from allegations that he assaulted Samuel Kelley on November 20, 2010. Kelley testified at trial that he met Scott when they were both middle school students. Kelley and Scott were friends through middle school and high school.

Kelley testified that he was “kicked out” of his parents' house in October or November 2009 when he was 20 years old. Scott offered to let Kelley stay at his apartment. Kelley knew that in high school, Scott and three of his friends called themselves “the White Rider Clique.” Scott was still involved with the group when Kelley moved into Scott's apartment in 2009. While staying with Scott, Kelley came to realize that the group was involved in criminal activities. Scott referred to the group as the “family,” and the group would have “family meetings” where they would “talk about family business.”...