State v. Gonzales
| Decision Date | 09 February 2016 |
| Docket Number | No. A-15-376.,A-15-376. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. JOSEPH GONZALES, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge. Affirmed.
David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, for appellee.
Following a jury trial in the district court for Scotts Bluff County, Joseph Gonzales was found guilty of obstructing a peace officer, resisting arrest, and tampering with physical evidence. On appeal, Gonzales asserts that the court erred in overruling his motion to suppress; there was insufficient evidence to support his conviction; he was denied the effective use of a peremptory challenge; he was denied a speedy preliminary hearing; the court erred in denying his requested jury instructions; and his sentence was excessive. Finding no merit to these claims, we affirm Gonzales' conviction and sentence.
Gonzales' convictions arose from his arrest on August 29, 2014, in Scottsbluff, Nebraska. At approximately 1:45 p.m. on August 29, Officer Matthew Herbel of the Scottsbluff PoliceDepartment was patrolling in a marked police cruiser when he observed Gonzales walking through a neighborhood on a public street carrying a small black bag that cinched at the top. The knapsack resembled a pillow case and appeared to contain several items. Herbel was aware that several residential burglaries had recently occurred in the area during daylight hours, between 11:00 a.m. and 3:00 p.m., and in each instance a pillow case was used to transport the stolen items. Gonzales was walking in front of a home that had been burglarized twice in recent weeks. Herbel also had previous experience with and knowledge of Gonzales as a suspect in connection with several burglary arrests and investigations.
When Gonzales observed Herbel, he began walking in the opposite direction. Herbel responded by making a U-turn and following Gonzales. When Gonzales observed Herbel the second time, he once again reversed direction. At this point Herbel decided to contact Gonzales, but before he could, Gonzales ran away and jumped over a chain link fence.
Herbel exited his patrol car and a foot chase ensued. Herbel caught up with Gonzales as he was attempting to escape over a 6-feet privacy fence. Gonzales stopped and turned to face Herbel, still holding the black bag in his hand. Herbel repeatedly ordered Gonzales to show his hands, but Gonzales only partially complied, showing one hand while keeping the other concealed by the bag. Gonzales then ran toward Herbel, a physical altercation ensued, and Gonzales broke free and fled.
Herbel requested backup and continued pursuing Gonzales on foot. Herbel caught Gonzales in the middle of a nearby street and placed him in a headlock. Gonzales continued to struggle and resist, but Herbel was eventually successful in wrestling Gonzales to the ground and handcuffing him with the assistance of two civilians. Herbel placed Gonzales on his feet and searched his person for weapons, during which Gonzales continued to resist. The search produced a syringe, but no weapons. Later, Herbel had an opportunity to look inside the black bag. Herbel believed that the items inside the bag were not taken from a burglary.
Herbel placed Gonzales in the backseat of his patrol car for transport to the Scotts Bluff County Detention Center. At this time, Miranda warnings were administered to Gonzales by Herbel. On the way, Herbel pulled over and exited the patrol car to make a phone call. Gonzales remained handcuffed in the backseat. Video from the in-car camera shows Gonzales shifting around in his seat, using his left hand to manipulate the waistband of his shorts, and removing what appeared to be a small plastic baggie containing a white substance from his shorts. Gonzales attempted to place the baggie in his mouth, but was unsuccessful. Soon thereafter, Herbel returned to the patrol car and drove to the detention center.
Once there, Herbel led Gonzales into the booking area of the detention center. Herbel conducted another search of Gonzales at this time, locating a small marijuana pipe in his pocket. While waiting for jail staff to conduct another search, Herbel noticed that Gonzales was continually angling his body away from Herbel and he appeared to have an item concealed in his hand. Herbel confronted Gonzales and grabbed his arm. Gonzales responded by placing the item into his other hand, and Herbel proceeded to wrestle him to the ground. Gonzales then placed the item into his mouth and swallowed it. At this point Gonzales quit fighting and became cooperative. No video evidence of the struggle in the booking area was introduced into evidence.
Gonzales was subsequently handcuffed and strip searched. The search did not produce any contraband, but an inspection of Gonzales' shorts revealed a small cut inside the waistband where items could be concealed. Gonzales was also transported to a hospital by the jail staff for an x rayapproximately 2 hours after he consumed the item. The x ray did not produce any evidence of contraband, and no further efforts were used to obtain the ingested item.
On September 2, 2014, Gonzales was charged in Scotts Bluff County Court with obstructing a peace officer, a Class I misdemeanor, and with resisting arrest, also a Class I misdemeanor. Gonzales was arraigned on the complaint that same day.
On September 18, 2014, the State filed an amended complaint, charging Gonzales with tampering with physical evidence, a Class IV felony. On September 24, 2014, Gonzales was arraigned on the amended complaint.
A preliminary hearing was held on October 7, 2014, during which the State dismissed the first two charges without prejudice, and Gonzales was bound over to district court on the third charge. Gonzales was then charged with these same three offenses in district court on October 14, 2014. The matter was brought for arraignment on October 24, 2014, at which point Gonzales entered a not guilty plea to all charges.
On December 10, 2014, Gonzales filed a motion to suppress the evidence obtained as a result of his arrest. The motion alleged that Gonzales was arrested without probable cause, and therefore any evidence obtained as a result of his unlawful arrest should be excluded. Following a hearing on the motion, the district court entered an order denying the motion on December 22, 2014.
A jury trial was held on February 20, 2015. Gonzales did not renew his motion to suppress at trial, nor did he object to Herbel's testimony. At the conclusion of the evidence, Gonzales made a motion for directed verdict, particularly as to the tampering charge, which the court denied. Gonzales requested Self Defense and Right to Avoid Police jury instructions. The court granted the request for a Self Defense instruction, but denied the request for a Right to Avoid Police instruction.
The jury returned a unanimous verdict of guilty on all counts. The district court accepted the jury's verdicts and ordered a presentence investigation.
A sentencing hearing was held on April 2, 2015. At the conclusion of the hearing, the court sentenced Gonzales to 360 days of imprisonment on each of the three counts, with the first two sentences to run concurrently and the third sentence to run consecutively to the first two. Gonzales received 217 days of credit for time served.
Gonzales subsequently perfected this appeal.
Gonzales assigns, restated, that (1) the district court erred in overruling his motion to suppress any evidence and statements obtained as a result of his arrest and detention; (2) there was insufficient evidence to support his conviction for all three counts; (3) he was denied removal for cause of an allegedly biased juror, which in turn denied him effective use of the peremptory challenge he applied to remove said juror; (4) he was denied a speedy preliminary hearing as required by Neb. Rev. Stat. § 29-504; (5) the court erred in denying his requested jury instructions; and (6) his sentence was excessive and constituted an abuse of discretion by the district court.
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. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). Stated another way, 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. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015). An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2...
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