State v. Brown

• Decision Date: 18 May 1990
• Docket Number: No. 89-653,89-653
• Citation: 235 Neb. 374,455 N.W.2d 547
• Parties: STATE of Nebraska, Appellee, v. Lionel R. BROWN, Appellant.
• Court: Nebraska Supreme Court

Page 547

455 N.W.2d 547

235 Neb. 374

STATE of Nebraska, Appellee, v. Lionel R. BROWN, Appellant.

No. 89-653.

Supreme Court of Nebraska.

May 18, 1990.

Syllabus by the Court

1. Criminal Law: Motions to Dismiss: Evidence. On a criminal defendant's motion to dismiss for insufficient evidence of the crime charged against the defendant, the State is entitled to have all its relevant evidence accepted as true, the benefit of every inference reasonably drawn from the evidence, and every controverted fact resolved in its favor.

2. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) the evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.

3. Jury Instructions. It is the duty of a trial court, without any request to do so, to instruct the jury on issues raised by the pleadings and supported by the evidence.

4. Jury Instructions: Evidence. A defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support it.

5. Jury Instructions. A trial court is not required to give an instruction where there is insufficient evidence to prove the facts claimed.

6. Criminal Law: Self-Defense. In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances.

7. Jury Instructions: Appeal and Error. Error cannot be predicated upon the failure to give jury instructions absent prejudice to the rights of the defendant.

8. Jury Instructions: Appeal and Error. An error made by a trial court in instructing the jury is not prejudicial where the jury's factual findings negate the consequence of such error.

Lee A. Larsen, Asst. Sarpy County Public Defender, for appellant.

Robert M. Spire, Atty. Gen. and Donald A. Kohtz, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Defendant, Lionel R. Brown, appeals his convictions pursuant to verdicts for first degree sexual assault in violation of Neb.Rev.Stat. § 28-319 (Reissue 1989), first degree false imprisonment in violation of Neb.Rev.Stat. § 28-314 (Reissue 1989), and first degree assault in violation of Neb.Rev.Stat. § 28-308 (Reissue 1989). Following an enhancement hearing, the district court found Brown to be a habitual criminal under Neb.Rev.Stat. § 29-2221 (Reissue 1989) and therefore determined that he was subject to sentences of not less than 10 nor more than 60 years' imprisonment on each conviction. The district court thereafter sentenced Brown to concurrent terms of imprisonment for not less than 20 nor more than 50 years each on the first degree sexual assault and first degree false imprisonment convictions and to imprisonment for not less than 10 nor more than 30 years on the first degree assault conviction, such sentence to run consecutively to the other two sentences. Brown's operative assignments of error assert the district court erred by (1) refusing to grant his motion to dismiss the charges against him at the close of the State's case in chief and (2) failing to instruct the jury on the issue of self-defense pursuant to Neb.Rev.Stat. § 28-1409 (Reissue 1989). We affirm.

The record as established by the State's case in chief reveals that Brown was acquainted with the victim prior to his commission of the crimes which resulted in his convictions. The victim had cut Brown's hair at the school where she was training to become a beautician, and she had given Brown her telephone number when they again met at a party. Brown later occasionally provided the victim transportation to such places as a grocery store, a government office, and the victim's place of employment. The victim paid Brown small amounts of money to reimburse him for expenses, e.g., the cost of gasoline associated with such transportation. The victim testified that she did not have a romantic relationship with Brown.

At approximately 7:30 p.m. on December 13, 1988, Brown drove the victim to a bar in Council Bluffs, Iowa, where the victim worked as a go-go dancer. Later that evening, after the victim had worked for about 1 1/2 hours, Brown agreed to give her a ride home. After Brown and the victim left the bar, the victim realized that Brown was not driving in the direction of her home and told him that "he was going the wrong way." Brown then indicated that he "wanted to go by his house and get something." The victim told Brown that she was tired and wanted to go home and to get her daughter from her mother's, and asked Brown to take her home first. Brown responded by telling the victim to "shut up and be quiet." Brown then proceeded to his Bellevue, Nebraska, apartment building.

After arriving at his apartment, Brown "snatched open" the passenger door of his automobile, "kind of grabbed" the victim by the neck and clothing, and "snatched [her] up out of the car." The victim then attempted to push Brown away, stating: " 'Lionel, no, I don't want to go in. I'll sit in the car.' " Brown nevertheless proceeded to take the victim into his apartment. The victim testified that once inside the apartment, she was "screaming, trying to get away, and [Brown] was letting [her] know that [she] wasn't going anywhere and that [she] might as well just ... take off [her] clothes and have sex with him" so that he could then take her to see her daughter.

The victim testified that Brown removed her clothing and instructed her to remove his pants, telling her to " '[t]ake them off or else.' " The victim complied with Brown's command, and Brown then forced the victim into his bedroom, where he instructed the victim to perform fellatio on him. The victim testified that she obeyed this command "[b]ecause [she] was scared." Brown then told the victim "to sit on top of him," and, against the will of the victim, the two engaged in sexual intercourse.

Thereafter, Brown told the victim that he was going to take her to Florida, and directed her to help pack some luggage. The victim then asked Brown to take her home so that she could be with her daughter, and asked Brown to let her leave his apartment. Regarding Brown's response to her request, the victim testified:

He was just, you know, he would just say, "Shut up, you're not going nowhere." He said he was going to kill me, either he was going to kill me here or he'd wait until I get to Florida or he'll kill me there, that I'll never see my daughter again.

The victim testified that she later attempted to use the telephone but was unable to get a dial tone before Brown "snatched" the telephone away from her and told her that it was "out of order." The victim also tried to run out of the apartment, but Brown caught her "in the kitchen," and at that point he struck her head and back and began choking her on the kitchen floor. The victim then attempted to strike Brown with an object she had grabbed from the top of his stove but lost the object after struggling with Brown. Brown also kicked the victim and struck her in the eye.

While in Brown's apartment, the victim screamed for help and pounded on the walls to attract attention. Brown responded by telling the victim that no one could hear her so she "might as well just shut up and be calm." The victim testified that at one point she threw an object through a window of the apartment in order to attract attention; this prompted Brown to use his fist to strike the victim's face.

Frederick John Trofholz II, a neighbor who lived in Brown's apartment building, noticed the commotion which was coming from Brown's apartment and testified that he heard a woman scream " '[h]elp me' " and " '[s]ave me.' " Trofholz alos testified: "At a couple points she said things to the effect of 'Dear God, Jesus, save me.' " Brandon Eric Terrell, another neighbor who lived in Brown's apartment building, also noticed the commotion and testified that he heard a woman screaming " 'Help me. Somebody please help me.' "

Trofholz eventually dialed 911 to summon police to the apartment building. When Bellevue Police Officer Thomas Piernicky arrived, he also heard a woman screaming for help. Piernicky knocked on Brown's apartment door, and Brown eventually cracked the door open 2 to 3 inches. Crying and bleeding from the nose, the victim ran up behind Brown and said that she needed help because Brown was going to kill her. Piernicky then wedged his flashlight in the doorway while Brown attempted to close the door. When the victim again screamed for help, Piernicky observed Brown "[backhand the victim] with his fist and hit her in the eye." Piernicky then informed Brown that he was under arrest.

Shortly after Piernicky had arrived at Brown's apartment, Bellevue Police Sgt. Herbert Evers also arrived at the scene. Because of Brown's resistance, Piernicky and Evers had to wrestle Brown to the floor in order to place handcuffs on him. After Piernicky and Evers had wrestled Brown to the floor, the victim ran up and kicked Brown in the groin, and despite the officer's efforts to keep her away from Brown, the victim twice struck Brown in the eye before the police also arrested her for assaulting Brown. The victim was then taken to the hospital to be treated for her injuries.

Dr. Richard Greenberg, a board certified ophthalmologist who examined the victim's eye injuries, testified that while the victim has 20/20 vision in her right eye, the vision in the left eye is permanently distorted and blurred as a result of scarring underneath the retina. Greenberg testified that such scarring is consistent with an injury caused by a hard blow from a fist. The victim testified that she had "normal" vision in her left eye before being struck by...