State v. Hoscheit
| Decision Date | 03 December 2019 |
| Docket Number | No. A-18-1205.,A-18-1205. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. BILLY R. HOSCHEIT, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Pierce County: JAMES G. KUBE, Judge. Affirmed.
Nathan J. Stratton, of Stratton, DeLay, Doele, Carlson, Buettner & Stover, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
Billy R. Hoscheit appeals from his convictions and sentences in the district court for Pierce County for third degree assault on an officer, resisting arrest, obstructing a peace officer, and disobeying a patrol officer. On appeal, he challenges the sufficiency of the evidence to convict him of all four charges and the court's failure to give his requested self-defense jury instruction. He also asserts that he received ineffective assistance of trial counsel in various regards. For the reasons set forth herein, we affirm.
On May 30, 2018, the State filed an information in the district court, charging Hoscheit with third degree assault on an officer under Neb. Rev. Stat. § 28-931(1) (Reissue 2016), a Class IIIA felony; resisting arrest under Neb. Rev. Stat. § 28-904 (Reissue 2016), a Class I misdemeanor; obstructing a peace officer under Neb. Rev. Stat. § 28-906 (Reissue 2016), a Class I misdemeanor; and disobeying a patrol officer under Neb. Rev. Stat. § 81-2008 (Reissue 2014), a Class III misdemeanor.
A jury trial was held on October 22-23, 2018. The State presented testimony from two law enforcement officers involved in this case. The district court received into evidence exhibits offered by the parties, including various photographs of the scene and of the injuries to one officer's face, as well as a copy of video recordings of the incident in question and screenshots taken from the video.
On December 25, 2017, while on duty, Nebraska State Patrol Trooper Brandon Viterna investigated a traffic accident. Viterna testified that through "multiple calls [his] dispatch placed for the registered owner," the identities of both the owner and the driver of the vehicle were determined. The registered owner was a woman with whom Viterna was familiar, and the woman advised dispatch that the driver was another woman whom Viterna did not know. Additionally, Viterna learned from "[his] dispatch" that the owner of the vehicle and Hoscheit had informed the dispatcher that the driver "was okay from the accident" but that they were not "going to provide the information of where she was located." Viterna was unable to locate the driver on December 25, but due to the prior contacts that day, he suspected that the driver might be at Hoscheit's residence. Accordingly, at the start of his shift on December 26, he decided to go to Hoscheit's residence to see if he could speak with the driver there.
Upon approaching Hoscheit's residence, Viterna observed Hoscheit and two women exit a vehicle and make their way toward the residence. Viterna testified that Hoscheit communicated something to the women, who "proceeded quickly" into the residence, which prompted Viterna to roll through a stop sign "in an attempt to get into the driveway to make contact with [the driver in question] prior to her getting into the residence." As Viterna drove closer to the residence, he saw Hoscheit walk back to the parked vehicle, retrieve a machete from the passenger area of the vehicle, and unsuccessfully attempt to pull the machete out of the sheath a couple of times.
The State offered into evidence a DVD containing video footage recorded by the camera in Viterna's patrol car. The first video clip shows Viterna driving towards Hoscheit's residence, roll through the stop sign, and pull into Hoscheit's driveway right after the sound on the video starts. Hoscheit can be seen reaching into the parked vehicle as Viterna pulls into the driveway and walking towards Viterna empty handed once Viterna's vehicle stops. The video quality is poor, but Viterna can clearly be heard asking Hoscheit why he was grabbing a machete, to which there is no direct response from Hoscheit. Hoscheit asked Viterna what he wanted.
The first video clip shows Viterna with his right hand in the vicinity of his holstered pistol as he approaches Hoscheit. Viterna states, "I want to talk to--" before being cut off by Hoscheit, who yells, Viterna then tells Hoscheit "shut your ass," after which Hoscheit moves quickly towards Viterna while continuing to yell and curse. Viterna can be seen striking Hoscheit on the right side of his head with his right closed fist, and a scuffle ensues.
At that point the first video clip shows a woman, who runs out of the house exclaiming "what the fuck, oh my god" and tries to separate Hoscheit and Viterna. Viterna then radios for backup just before Hoscheit repeatedly tells him to "get the fuck off [his] property." Viterna then tells Hoscheit to get on the ground, which Hoscheit does not do. Viterna also repeats his requestto speak with someone at the residence. After further similar exchanges, including Hoscheit yelling "you want to assault me" and Viterna responding "shut up," Viterna tells Hoscheit to get the dog [who was on the scene] back in the house, and Hoscheit responds,
Eventually, a second woman comes out of the residence and responds affirmatively to Viterna's inquiry of whether she was involved in the accident the previous night. During this exchange, Hoscheit continues to yell and demand that Viterna leave. The second woman asks Viterna to move his vehicle off the property and states that she will meet him so they can talk. While Viterna moves to his vehicle, the video shows Hoscheit following close behind Viterna, continuing his demands that Viterna leave and calling him a "motherfucker." The video then shows Viterna backing his vehicle off the driveway while Hoscheit walks close in front of it continuing to yell at Viterna.
After this first video clip was played for the jury, Viterna's testimony resumed. Viterna stated that after the events captured in that video clip, he was able to speak with the two women at the scene without incident. Viterna identified the women by name during his testimony, indicated that the second woman shown in the video was the individual he was looking for, and described both women as cooperative. Viterna characterized his action in hitting Hoscheit as an unsuccessful attempt to deliver a "brachial strike," a technique troopers are trained in, which is intended to "stun or disorient an individual." Viterna testified that his attempt was not successful due to "the fluidity of the situation," resulting in the strike being delivered "a little high" and landing on the side of Hoscheit's head rather than his neck. Viterna testified that during the subsequent struggle, Hoscheit hit him on his left cheek, just below his eye. Viterna's injuries were later photographed and documented at a hospital. The hospital examination revealed "some minor swelling and redness" of his cheek and showed that his eye was "somewhat bloodshot in the corner." Hospital personnel recommended treatment with ibuprofen and ice if needed.
Viterna testified that he informed Hoscheit he was under arrest prior to the arrival of other law enforcement officers. Viterna stated that he "was instructing Hoscheit to get on the ground because he was under arrest" but that Hoscheit did not comply, continued to "yell over the top of" Viterna, and ignored Viterna's orders. Viterna indicated that three additional officers from three other law enforcement agencies, including Pierce County Sheriff Rick Eberhardt, arrived between 5 and 15 minutes after Viterna's call for backup. While Hoscheit walked back and forth in his yard and entered and exited the residence once or twice, Viterna briefed the other officers on the situation, including the fact that Hoscheit had hit him.
Eventually, the group of officers, led by Eberhardt, attempted to make contact with Hoscheit to place him under arrest. Hoscheit responded by going into his residence and locking himself inside. According to Viterna, Eberhardt led Viterna and a third officer to another door to gain access. Hoscheit declined Eberhardt's request to come out voluntarily. After some negotiation, Eberhardt kicked the door open, but Hoscheit slammed it shut and "resecured [it] somehow." After further brief negotiation, Eberhardt kicked the door down again, and the officers entered, giving Hoscheit "multiple orders to get on the ground," which he refused. According to Viterna, the officers collectively tried to take control of Hoscheit, but he "continued to resist and kick." Eventually, the officers gained control of Hoscheit and placed him in handcuffs.
A second video clip containing audio of the officers' entry into the residence and their confrontation with and arrest of Hoscheit was played for the jury (the video portion of this clip only shows the outside of the residence). In the second clip, Hoscheit can be heard asking multiple times if he is under arrest, to which an officer responds that he is and tells him to come out. When Hoscheit asks why he is under arrest, an officer responds "did you hear the cop?" followed by a long pause and the officer's response of "then you know why, Billy." In response to another request for Hoscheit to come out, he can be heard responding that "if I struck an officer it was in [inaudible] of myself." After further instructions to come out of the residence, Hoscheit responds that he "consider[s] the arrest for an assault on an officer who was...
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