State v. Pelc
| Decision Date | 02 April 2019 |
| Docket Number | No. A-18-540.,A-18-540. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. DARRIN E. PELC, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Boyd County: MARK D. KOZISEK, Judge. Affirmed.
Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
Darrin E. Pelc appeals from his convictions in the district court for Boyd County, following a jury trial, for strangulation, terroristic threats, and first degree false imprisonment. The district court found Pelc was a habitual criminal as defined by Neb. Rev. Stat. § 29-2221 (Reissue 2016) and imposed concurrent sentences of a mandatory minimum of 10 years in prison and a maximum of 14 years. On appeal, Pelc claims prosecutorial misconduct, challenges certain questioning by the prosecutor, asserts the court should have instructed the jury on self-defense, challenges the sufficiency of the evidence for his convictions and the court's finding that he was a habitual criminal, and raises various claims of ineffective assistance of trial counsel. Finding no error, we affirm.
The charges in this case arose out of an incident that occurred between Pelc and his girlfriend, Hebbie Snyder, on the evening of April 9, 2017. On May 17, the State filed an information in the district court, charging Pelc with strangulation in violation of Neb. Rev. Stat. § 28-310.01 (Reissue 2016), a Class IIIA felony; terroristic threats in violation of Neb. Rev. Stat. § 28-311.01 (Reissue 2016), a Class IIIA felony; first degree false imprisonment in violation of Neb. Rev. Stat. § 28-314 (Reissue 2016), a Class IIIA felony; and third degree domestic assault in violation of Neb. Rev. Stat. § 28-323 (Reissue 2016), a Class I misdemeanor. The State also alleged that Pelc was a habitual criminal under § 29-2221.
Pelc filed a motion for disclosure of intention to use evidence of other crimes, wrongs, or acts pursuant to Neb. Rev. Stat. § 27-404 (Reissue 2016). At the hearing on this motion, the State expressed no intent to offer such evidence, and the district court ordered that the State was prohibited from adducing such evidence.
At the start of the jury trial, held on February 28 and March 1, 2018, the State dismissed the third degree domestic assault charge. The State presented testimony from the victim, a person contacted by the victim shortly after the incident, and various law enforcement officers who investigated the incident. The district court received into evidence numerous photographs documenting Snyder's injuries following the incident. Pelc presented testimony from two witnesses about the victim's character and copies of his medical records following the incident.
In April 2017, Snyder and her three children were living with Pelc, whom Snyder was dating, in Pelc's farmhouse in Boyd County. Pelc and Snyder both worked at a "mechanic shop" in Butte, Nebraska.
On the evening of April 9, 2017, Pelc and Snyder left the farmhouse in Pelc's vehicle. Pelc was driving, and he told Snyder, who was in the front passenger seat, to "start talking." Snyder testified that when she asked Pelc what he wanted her to talk about, he "started driving like a maniac going back and forth on the road." When Snyder asked him to stop and let her out of the vehicle, he again told her to "[s]tart talking," and upon further inquiry, he told her to "tell the truth." According to Snyder, Pelc would not stop the vehicle, kept repeating himself and screaming at her, and "just kept driving real crazy."
Pelc continued to drive, and at some point they passed the shop. When they reached a gravel road, Snyder jumped out of the moving vehicle and rolled into a ditch full of water. She testified that the vehicle was moving "pretty fast" at that point, but she jumped out because Pelc would not stop, was screaming at her, and would not "quit driving crazy." Pelc stopped the vehicle, got out, and told Snyder to get back inside the vehicle. When Snyder refused, Pelc told her that if she did not get back in the vehicle, he was going to drown her. Snyder testified that this "scared the shit out of [her]" because she thought he might actually drown her based on the tone of his voice and his actions up to that point. Snyder got back in the vehicle and tried to drive off without Pelc, but he stopped her and told her "to never make a stupid move like that again" or he would kill her. Snyder testified that she felt "very scared" at that point.
After that, Pelc continued "driving like crazy," and every time Snyder tried to get out of the vehicle again, Pelc would "smack [her] or hit [her] or something" and prevent her from doing so. At some point, Pelc told Snyder that "he knew where all the holes were and that [she] was next," which she took to mean that he "had somewhere to bury her." Snyder testified that this remark scared her. According to Snyder, Pelc punched her several times in the face, the ribs, and the gut while they were driving around. At one point when Snyder reached for the door handle, Pelc "jumped on top [her]" and choked her, impeding her ability to breathe. Snyder testified that Pelc let go of her neck after a few seconds, punched her again, and told her to "stop faking it." Snyder testified that she "seriously thought that was going to be the last night of [her] life."
They continued to drive, passing through Spencer driving toward O'Neill, Nebraska, but Snyder testified that she was certain the injuries inflicted on her by Pelc occurred "between Butte and Spencer on gravel roads." At some point, Snyder opened the passenger door to the vehicle and jumped out again. As she did so, Pelc grabbed her hoodie and her hair, so that a big chunk of her hair was ripped out when she jumped. After that, Snyder took off running the other direction, and although Pelc tried to turn around and drive after her, he ended up rolling the vehicle. Snyder kept running and flagged down another vehicle, but when she got into the back seat, she saw that Pelc was already in the front passenger seat. Snyder asked the driver of that vehicle to call 911 but he told her he did not have a phone. The driver took them to the shop in Butte, and although Snyder asked him to take her somewhere else, he refused. Snyder exited the vehicle on the opposite side from Pelc, and she ran across the highway to a house, where one of the residents, Brandee Reiser, called 911 for Snyder.
Reiser testified that on the evening in question, she and her husband were awoken by Snyder "slamming on the door" to their house and "screaming to be let in." Reiser went to the door and Snyder, who Reiser described as "hysteric [sic]" and "panicked," asked her to call the police and explained what had happened. Reiser called the police, and her husband called another individual, who went with him to Pelc's farmhouse to retrieve Snyder's children.
Police received the call around 11:30 p.m. and deputies from the Boyd County Sheriff's Department responded to the call. When the deputies got to the Reiser residence, they spoke with Snyder, who was crying and highly upset, and one of them photographed her visible injuries, which included bruising on her leg, hands, arms, back, neck and eye. The deputies also documented a wad of hair wrapped around the drawstring of Snyder's hoodie. The deputies then transported Snyder to the sheriff's office to speak with her further. They also took a few more photographs of Snyder's bruising, which had started to show up a little bit better, before transporting Snyder and her children to a motel. That night, the deputies also investigated the scene of the vehicle rollover, where they found a clump of hair, consistent with the hair found on the drawstring of Snyder's hoodie, among the rubbish scattered outside of the vehicle. The deputies took additional photographs of Snyder the next morning.
At trial, the deputies were asked about whether bruising on Snyder's knuckles showed offensive or defensive marks. One deputy responded, "It could be, potentially, either/or." He also testified that the bruises on Snyder documented at the Reiser residence appeared to be relatively recent, although he agreed that it was possible the bruises could have been "at least six hours old." Another deputy testified that he took photographs of Snyder's hands to document bruising, but he did not know whether the marks were offensive or defensive. This deputy also testified that it was "possible" that some of the bruising observed on Snyder in the early morning hours of April 10, 2017, could have occurred prior to 9:30 p.m. on April 9. During her trial testimony, Snyder reviewed the photographs taken by the deputies and confirmed that all of the injuries shown occurred during the incident in question and that none of her injuries were preexisting. She also denied assaulting Pelc and testified that all of her injuries were defensive.
Pelc did not testify. He offered into evidence his medical records from a visit to a medical clinic on April 10, 2017, where he was treated for a laceration to his right hand and complaints of "left shoulder pain radiating into head and neck." He also offered testimony from two witnesses who were asked about Snyder's "propensity to tell the truth." One of Pelc's witnesses testified that in the three or four times she had met Snyder, she had not "caught any lies or anything;" the other testified that he did not think Snyder told the truth "all the time."
The jury found Pelc guilty of strangulation, terroristic threats, and first degree false imprisonment. The district court accepted the verdicts and scheduled an enhancement and a sentencing hearing.
During the...
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