State v. Trew

STATE OF NEBRASKA, APPELLEE, v. ROGER G. TREW, APPELLANT.

No. A-19-922

No. A-19-926

NEBRASKA COURT OF APPEALS

August 11, 2020

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).

Appeals from the District Court for Kearney County: TERRI S. HARDER, Judge. Affirmed.

Jonathan R. Brandt, of Anderson, Klein, Brewster & Brandt, for appellant.

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

MOORE, Chief Judge, and BISHOP and WELCH, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

In these consolidated cases, Roger Trew appeals from his convictions in the District Court for Kearney County of one count of terroristic threats, three counts of possession of a firearm during the commission of a felony, and one count of possession of an explosive during the commission of a felony. Trew challenges the sufficiency of the evidence to support his convictions and the sentences imposed. He also asserts that he received ineffective assistance of counsel. For the following reasons, we affirm.

II. BACKGROUND

Trew was originally charged by complaint in two separate cases in the county court of Kearney County following an incident on July 5, 2018. He was ultimately charged by information in the district court, in two separate cases, with one count of terroristic threats, three counts of use of a firearm to commit a felony, one count of using explosives to commit a felony (yellow duct tape explosive device and 16 ounce bottle pyrodex), and one count of possession of a destructive device. The cases were consolidated for trial and a bench trial was held on June 17, 2019. At the beginning of the trial, the State struck Leslie Randall's initials from the body of the terroristic threats charge, so that after reciting the elements of the crime, it now read "to wit: threatened he was coming to shoot up the place at Fort Kearney [sic] State Park." The following evidence was heard at trial.

On July 4, 2018, Trew was spending time with Randall, his significant other, at his father's home in Minden, Nebraska. Trew and Randall got into an argument, and Randall left Minden to go to Fort Kearny campground. Several members of Randall's family and her former husband's family were camping at this location. Randall testified that she left Fort Kearny and she stayed overnight at her daughter's apartment in Minden. Randall's former mother-in-law, her former brother-in-law, and her son all testified that Randall stayed overnight in her ex-husband's camper at Fort Kearny and was present at the campsite during the next morning. At the time of trial, Randall and Trew were engaged.

The next day, on July 5, 2018, Randall received text messages from Trew asking where she was the night before. Photographs of the text messages were received at trial. At trial, Trew explained that he used a "talk to text" feature on his phone, where he spoke into his phone's microphone and the phone automatically converted his speech into text messages. Among the texts that Randall received from Trew were a picture of a speedometer showing a speed of around 100 miles per hour and messages where Trew stated "And I'm coming fast," "I will give you three minutes to get over to the fucking park or else I'm going to come in the rolling up and I'm going to stop fucking killing people," and "You ready for this fucking shoot out because I am." At trial, Trew testified that these texts were supposed to say "drilling people," as in asking questions, and "shout out," but were changed to the messages Randall received by using the talk to text feature. Randall testified that she didn't tell anyone about the texts, but her former mother-in-law and brother-in-law testified that Randall showed them the text messages. Randall's son testified that Randall showed him a text from Trew that said "I'm looking at your precious family and stuff and I can end it all," although that text message was not included in the exhibit offered into evidence. Randall's former brother-in-law testified that Randall's son was yelling to the group that Trew was coming to the campground and "he was going to shoot up everybody and shoot up the place, and shoot up the precious little family." Randall's son called 911, despite Randall's request that he not call law enforcement as she did not want Trew to be arrested.

Shortly after Randall received the text messages from Trew, several members of Randall's former family saw Trew driving quickly into the campsite in a black Jeep. Trew parked the Jeep and exited the vehicle, but Randall's former mother-in-law did not see where he went. Trew testified that after exiting the vehicle, he started swinging on a swing set.

According to Randall's former mother-in-law, prior to Trew's arrival, Randall told her that she wasn't supposed to be there and she appeared scared. Randall's former brother-in-law and her son confirmed that Randall was shaking and appeared scared, and that she was hiding in one of the campers. These witnesses also indicated that they were afraid, particularly because of the presence of several young infants and children in their group. Randall denied being afraid herself, although she was concerned about the safety of the children present.

Police officers arrived at the campsite, located Trew's Jeep, and found Trew sitting on a utility post near the Jeep. The officers then handcuffed Trew and checked for weapons. The officers did not find any weapons on Trew's person, but there was a rifle in plain view in the backseat of the Jeep and a hard plastic gun case in the cargo area. Trew told the officers that there was also a .40-caliber handgun under the front seat of the Jeep, which the officers were able to confirm. Upon a search of the vehicle, the officers located three guns (the hard plastic gun case also contained a rifle), along with a possible explosive device (item wrapped in yellow tape with a fuse), and a bottle of pyrodex, which was "a black powder substitute for muzzleloading rifles." There were large amounts of ammunition in the vehicle as well. Upon further investigation, a hazardous device technician for the Nebraska State Patrol opined that the pyrodex bottle contained a chemical compound that is designed to function by explosion. Trew testified that he had the guns in his vehicle because he planned on going shooting with his dad later that day, and that he always carried the handgun under the seat because he had a concealed carry permit.

On June 19, 2019, the court entered orders finding Trew guilty of one count of terroristic threats, three counts of possession of a deadly weapon during commission of a felony, and one count of possession of an explosive to commit a felony (bottle of pyrodex). The court granted Trew's directed verdict as to the count charging Trew with use and possession of an explosive during the commission of a felony (the yellow duct tape explosive device), the portion of the count charging him with use of an explosive during the commission of a felony (pyrodex), and the portion of the count dealing with use of a firearm to commit a felony. Trew was sentenced to 2 to 3 years' imprisonment for the terroristic threats charge, and to 1 to 3 years' imprisonment for each firearm count, all to be served consecutively. Trew was sentenced to 2 to 5 years' imprisonment on the possession of the explosive during the commission of a felony, to be served concurrent with his other convictions.

Trew now appeals.

III. ASSIGNMENTS OF ERROR

Restated, Trew assigns that (1) the district court erred in finding sufficient evidence to support each of his convictions, (2) he received ineffective assistance of counsel, and (3) the district court erred in the sentences imposed.

IV. STANDARD OF REVIEW

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. State v. Gomez, 305 Neb. 222, 939 N.W.2d 763 (2020).

In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether counsel was or was not prejudiced by counsel's alleged deficient performance. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a 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. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018). An abuse of discretion 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. Id.

V. ANALYSIS

1. SUFFICIENCY OF EVIDENCE

Trew first argues that the evidence was not sufficient to support his convictions. 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. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020). 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; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of...