State v. Dixon

• Decision Date: 16 September 2011
• Docket Number: No. S–10–476.,S–10–476.
• Citation: 802 N.W.2d 866,282 Neb. 274
• Parties: STATE of Nebraska, appellee,v.Armon M. DIXON, appellant.
• Court: Nebraska Supreme Court

282 Neb. 274

802 N.W.2d 866

STATE of Nebraska, appellee,

v.Armon M. DIXON, appellant.

No. S–10–476.

Supreme Court of Nebraska.

Sept. 16, 2011.

Syllabus by the Court

1. Venue: Appeal and Error. An appellate court reviews the denial of a motion to change venue for abuse of discretion.

2. Venue. Under Neb.Rev.Stat. § 29–1301 (Reissue 2008), a change of venue is mandated when a defendant cannot receive a fair and impartial trial in the county where the offense was committed.

3. Venue: Proof. Unless a defendant claims that the pretrial publicity has been so pervasive and prejudicial that a court should presume the partiality of prospective jurors, a change in venue is evaluated under the following factors: These factors are (1) the nature of the publicity, (2) the degree to which the publicity has circulated throughout the community, (3) the degree to which the publicity circulated in areas to which venue could be changed, (4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care exercised and ease encountered in the selection of the jury, (6) the number of challenges exercised during voir dire, (7) the severity of the offenses charged, and (8) the size of the area from which the venire was drawn.

4. Venue: Due Process. Mere exposure to news accounts of a crime does not presumptively deprive a defendant of due process.

5. Venue: Due Process: Proof. To warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity. A defendant must show that publicity has made it impossible to secure a fair and impartial jury.

6. Venue. Press coverage that is factual cannot serve as the basis for a change of venue.

7. Trial: Juries: Appeal and Error. The decision to retain or reject a venireperson as a juror rests in the trial court's discretion, and an appellate court will reverse only when it is clearly wrong.

8. Jurors: Appeal and Error. Even if the trial court erroneously overrules a challenge for cause, an appellate court will not reverse the court's decision unless the defendant can show that an objectionable juror sat on the jury after the defendant exhausted his or her peremptory challenges.

9. Trial: Jurors: Appeal and Error. Under Neb.Rev.Stat. § 29–2006 (Reissue 2008), dismissal of a prospective juror is mandatory only if the prospective juror has formed an opinion about the defendant's guilt or innocence based on conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify.

10. Juror Qualifications. Nebraska law does not require that a juror be totally ignorant of the facts and issues involved in the case.

11. Juror Qualifications. A dismissal is not required if a prospective juror formed an opinion based on newspaper statements, communications, comments or reports, or upon rumor or hearsay if the prospective juror states under oath that he can render an impartial verdict and the court is satisfied of such.

12. Trial: Jurors: Appeal and Error. An appellate court gives deference to a trial court's determination of whether a prospective juror can apply the laws impartially.

13. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

14. Judgments: Words and Phrases. 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.

15. Motions for Continuance: Appeal and Error. A court does not abuse its discretion in denying a continuance unless it clearly appears that the party seeking the continuance suffered prejudice because of that denial.

16. Motions for Continuance: Appeal and Error. Neb.Rev.Stat. § 25–1148 (Reissue 2008) requires motions for a continuance to be in writing. But a failure to put such a motion in writing is but a factor to be considered in determining whether a trial court abused its discretion in denying a continuance.

17. Criminal Law: Motions for Continuance. When deciding whether to grant a continuance in a criminal case, courts must take into consideration the public interest in prompt disposition of the case.

18. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.

19. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.

20. Motions for Mistrial. Events that may require the granting of a mistrial include egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of incompetent matters.

21. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

22. Motions for Mistrial. A party must premise a motion for mistrial upon actual prejudice, not the mere possibility of prejudice.

23. Motions to Dismiss: Evidence: Waiver: Appeal and Error. When a court overrules a defendant's motion to dismiss at the close of the State's case in chief and the defendant proceeds to trial and introduces evidence, the defendant waives the appellate right to challenge the trial court's overruling of the motion to dismiss. But the defendant may challenge the sufficiency of the evidence.

24. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence, it does not matter whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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 finders of fact. The relevant question 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.

25. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

26. Prior Convictions: Proof. In a proceeding to enhance a punishment because of prior convictions, the State has the burden of proving such prior convictions by a preponderance of the evidence.

27. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings.

28. Prior Convictions: Records: Proof. A prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities.

29. Prior Convictions: Records: Proof. In reviewing criminal enhancement proceedings, a judicial record may be proved by the production of the original, or by a copy thereof, certified by the clerk or the person having the legal custody thereof, and authenticated by his or her seal of office, if he or she has one.

30. Prior Convictions: Records: Names. An authenticated record establishing a prior conviction of a defendant with the same name is prima facie evidence sufficient to establish identity for the purpose of enhancing punishment and, in the absence of any denial or contradictory evidence, is sufficient to support a finding by the court that the accused has been convicted prior thereto.

31. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

32. Statutes: Legislature: Intent. A court's objective in interpreting a statute is to determine and give effect to the legislative intent of the enactment.

33. Statutes: Appeal and Error. When construing a statute, an appellate court looks to the statute's purpose and gives the statute a reasonable construction that best achieves that purpose, rather than a construction that would defeat it.

34. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an appellate court gives words in a statute their ordinary meaning.

35. Aiding and Abetting. Aiding and abetting is not a separate crime; instead, aiding and abetting is simply another basis for holding one liable for the underlying crime.

36. Sentences: Appeal and Error. Sentences imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion.

37. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, (6) motivation for the offense, (7) the nature of the offense, (8) and the violence involved in the commission of the crime.

38. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing...