State v. Ware

STATE OF NEBRASKA, APPELLEE, v. SCOTT L. WARE, APPELLANT.

No. A-16-1168.

NEBRASKA COURT OF APPEALS

October 24, 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 Douglas County: SHELLY R. STRATMAN, Judge. Affirmed in part, and in part vacated and remanded for resentencing.

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

Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

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

BISHOP, Judge.

I. INTRODUCTION

Scott L. Ware was convicted of terroristic threats, a Class IIIA felony, and use of a deadly weapon to commit a felony, a Class IC felony, after a jury trial in the Douglas County District Court. Ware now appeals his convictions and sentences. Although we affirm Ware's convictions and his sentence for use of a deadly weapon to commit a felony, we vacate Ware's sentence for terroristic threats and remand the cause to the district court for resentencing in accordance with this opinion.

II. BACKGROUND

Ware's convictions were the result of an incident that took place on November 18, 2015. The victim, Misty Parker, made a report to police that Ware pulled a gun on her and threatened her as she was walking to pick up her daughter from school. Ware was initially charged by information with terroristic threats under Neb. Rev. Stat. § 28-311.01 (Reissue 2016). Before trial, an amended information added a charge of use of a deadly weapon (firearm) to commit a felony under Neb. Rev. Stat. § 28-1205 (Reissue 2016). A jury trial was held in September 2016.

Parker testified that between 3:30 and 4 p.m. on November 18, 2015, she was walking to pick up her daughter from elementary school. She was stopped at a crosswalk when she heard someone call her name. She looked up and saw Ware alone in a minivan. Parker recognized Ware's face immediately, having known him for years as a friend of her fiancé's, and because she and Ware had a previous sexual encounter (after which she and Ware's relationship soured, and there was "no speaking, no nothing," which was still the case as of November 18).

According to Parker, she looked up and saw Ware, and he yelled at her to "check West and something about a girl named Puffy," which she interpreted to imply infidelity on the part of her fiancé (West) with a woman named Puffy. In response, Parker yelled profanities at Ware and "flipped him the finger."

After the initial interaction, Parker said she continued walking up the street on the way to the school. Ware turned the van around and was driving next to Parker as she walked. She could hear him yelling something undecipherable, and she continued to "flip him off" and walk away. When they reached the corner of the block, Parker turned and proceeded down the sidewalk directly toward the school. Ware turned through the intersection and then drove his van across the lanes and up onto the curb in front of Parker. His left hand was on the steering wheel and his right hand was temporarily hidden from Parker's sight. Ware then pulled out a pistol and aimed it out of the driver's side window at Parker's head. The gun was between one and two feet from her head when Ware looked at her and said, "I have one for you and I have one for West. Watch."

Parker was terrified and ran to the elementary school, where she vomited in the bathroom. After regaining her composure, she alerted the principal as to what had happened, and the police were called. Officers arrived a few minutes later to interview Parker and she described the events, identified Ware, and gave them a description of the vehicle, the pistol, and Ware's clothing. Parker described the pistol as being small with a black handle and some silver. She said Ware was wearing a dark shirt, a black leather coat, and a brown golf hat.

Officer Matt McDonald testified he and his partner initially proceeded to Ware's apartment, where Officer Andrew Ramsay and his partner had already arrived in response to Parker's call to the police. Seeing Officer Ramsay and his partner were already at Ware's apartment, Officer McDonald and his partner went to the school to interview Parker.

Officer Ramsay testified he and his partner were the first to arrive at Ware's apartment. After the other officers went to the school to interview Parker, Officer Ramsay and his partner knocked on Ware's door. Ware answered, and after the officers explained they were there in response to Parker's call, Ware gave written consent to a search of his apartment.

After interviewing Parker, Officer McDonald and his partner returned to Ware's apartment, where Officer Ramsay and his partner were still conducting a search. Ware was wearing clothing consistent with the description Parker had provided earlier in her interview at the school. Officer McDonald and his partner took Ware into custody for questioning at police headquarters downtown. Ware allowed Officer Ramsay and his partner to stay and continue searching his apartment. After receiving a phone call from the Criminal Investigation Bureau instructing themto search for a black jacket, Officer Ramsay and his partner searched Ware's bedroom and found a black leather jacket with a .32 caliber revolver in the pocket.

Upon discovering the weapon, Officer Ramsay called the Crime Lab to photograph and collect the evidence. Krystal Kirwin, a Crime Lab technician, went to Ware's home and took photographs of the evidence seized. She testified at trial as to the authenticity of the photographs of Ware's apartment and chain of custody of the physical evidence, including the .32 caliber revolver and ammunition admitted into evidence at trial.

After the State rested, the defense made a motion for a directed verdict, which was denied. The defense then proceeded to call its only witness, Nancy Carson. Carson testified that on the date of the incident, she spent most of the afternoon with Ware, with whom she has had an on-and-off romantic relationship for years. She acknowledged Ware was driving a van that day, but claimed he was wearing a pink and white long sleeved shirt with a burgundy vest over it and a tan jacket. Exhibit 28, a photograph of the tan jacket, was received into evidence without objection. The police found the jacket in a laundry basket in Ware's living room during their search.

After the close of all evidence, the defense renewed its motion for a directed verdict, which the district court denied. The jury convicted Ware of both charges. The district court sentenced Ware to 5 to 7 years' imprisonment for his use of a deadly weapon to commit a felony, and 2 years' imprisonment for terroristic threats. Ware now appeals.

III. ASSIGNMENTS OF ERROR

Ware assigns that (1) the trial court erred in overruling his motion for a directed verdict and motion to dismiss for insufficient evidence; (2) the trial court erred by imposing excessive sentences; and (3) his trial counsel was ineffective for failing to properly investigate the scene of the incident or interview witnesses, and for failing to adequately demonstrate the exculpatory nature of Exhibit 28.

IV. STANDARD OF REVIEW

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: 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 prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). 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. State v. Hunnel, 290 Neb. 1039, 863 N.W.2d 442 (2015).

Plain error may be found on appeal when an error, plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to theintegrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). 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 the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.

V. ANALYSIS

1. MOTION FOR DIRECTED VERDICT

Ware contends the trial court erred by "overruling [his] motion for a directed verdict and motion to dismiss for insufficient evidence." Brief for appellant at 10. Ware moved the court for a directed verdict at the close of the State's case, put on evidence after the first motion was denied, and then renewed his motion for a directed verdict after the close of the case. By putting on evidence after the first motion was denied, Ware waved his right to challenge the denial of that first motion. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016). However,

[w]hen a defendant makes a motion at the close of the State's case in chief and again at the conclusion of

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