State v. Richard, A-21-886

CourtCourt of Appeals of Nebraska
Writing for the CourtRIEDMANN, JUDGE.
PartiesState of Nebraska, appellee, v. Chriz P. Richard, appellant.
Docket NumberA-21-886
Decision Date13 September 2022

State of Nebraska, appellee,
v.

Chriz P. Richard, appellant.

No. A-21-886

Court of Appeals of Nebraska

September 13, 2022


THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed.

Jonathan Braaten, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

Moore, Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

RIEDMANN, JUDGE.

INTRODUCTION

Chriz P. Richard appeals his felony convictions and sentences arising out of a robbery that occurred on February 13, 2019. He challenges the sufficiency of the evidence for certain offenses and the length of his sentences. He further alleges that his trial counsel was ineffective. We affirm.

BACKGROUND

On the evening of February 13, 2019, Hasan Tran was with a friend when they arranged a purchase of marijuana. Tran's friend drove Tran's vehicle to a location in Lincoln, Nebraska, and parked on the street. Two men approached and got into the backseat. According to Tran, both men pulled out firearms and demanded that Tran give them his property, forcibly taking his cell phone and money. Then, according to Tran, the men exited the vehicle, and the man who had been seated behind the passenger seat approached the passenger side window with the firearm still in his hand,

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looking for additional property. Once Tran and his friend got away, they went to a gas station where they encountered Lincoln police officers and reported the robbery.

While investigating the robbery, police discovered that the marijuana transaction had been arranged through social media, and they linked the messages to an account associated with Richard. Police responded to an apartment complex looking for Richard but were unable to locate him, so they set up surveillance to keep watch on the apartments. Later that evening, they observed Richard exit one of the apartments wearing a red backpack. The police investigators exited the vehicle from which they had been conducting surveillance and followed Richard, attempting to make contact with him at the corner of the apartment complex. When they called Richard's name, he looked at them and then immediately took off running. Two investigators chased Richard in different directions in an effort to cut him off, and one of them observed Richard drop the backpack before jumping over a fence. Inside the backpack, police located two bags of marijuana and two handguns. Richard was ultimately taken into custody.

The State charged Richard with five felonies: count I, possession of marijuana with intent to deliver; count II, possession of a firearm during the commission of a felony; count III, possession of a stolen firearm; count IV, robbery; and count V, use of a firearm to commit a felony. The matter proceeded to a jury trial. Tran testified, describing the robbery as detailed above, and the police officers involved in the investigation and Richard's arrest also testified. The evidence additionally established that a partial palm print found on the outside of the passenger side of Tran's vehicle was matched to Richard.

Richard testified in his own defense. He admitted that he agreed to meet with Tran, but he claimed that he was purchasing marijuana from Tran, rather than selling it to Tran. He acknowledged approaching Tran's vehicle and claimed that Tran asked him to come to the passenger side window, resulting in his palm print on the outside of the vehicle. According to Richard, he then grabbed the marijuana, small plastic baggies, and scale that Tran was holding and took off running. He denied getting into the vehicle or having a gun with him at the time. He admitted to owning the guns that were found in the red backpack, but claimed they remained in the apartment at the time he met with Tran. He testified that he purchased the guns and was unaware that one of them was stolen.

The jury acquitted Richard of count III, possession of a stolen firearm, but found him guilty of the remaining four charges. He was sentenced to consecutive terms of imprisonment of 2 to 3 years for count I, 1 to 2 years for count II, 4 to 5 years for count IV, and 5 to 6 years for count V. Richard timely appeals.

ASSIGNMENTS OF ERROR

Richard assigns, restated and renumbered, that the district court erred in (1) finding sufficient evidence to sustain the convictions for use of a firearm to commit a felony and possession of a firearm during the commission of a felony, and (2) imposing excessive sentences. He also assigns that his trial counsel was ineffective in his general trial strategy.

STANDARD OF REVIEW

In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate

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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. 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. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).

Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. State v. Grant, 310 Neb. 700, 968 N.W.2d 837 (2022). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

ANALYSIS

Sufficiency of Evidence.

Richard assigns that the evidence presented at trial was insufficient to prove that he used a firearm to commit the robbery and that therefore, the district court erred in...

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