State v. Rodriguez

Citation6 Neb.App. 67,569 N.W.2d 686
Decision Date07 October 1997
Docket NumberNo. A-96-1304,A-96-1304
PartiesSTATE of Nebraska, Appellee, v. Timothy C. RODRIGUEZ, Appellant.
CourtCourt of Appeals of Nebraska

James Martin Davis, Omaha, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.




Timothy C. Rodriguez appeals his conviction in the district court for Sarpy County of making terroristic threats in violation of Neb.Rev.Stat. § 28-311.01 (Reissue 1995). For the reasons cited below, we affirm.


On February 15, 1996, the State filed a criminal complaint charging Rodriguez with making terroristic threats against Lelon Sapp on February 13. On April 19, Rodriguez entered a plea of not guilty.

A jury trial began in the district court for Sarpy County on July 10. After the jury had been sworn in, but prior to the opening statements, counsel for Rodriguez challenged the use of peremptory challenges by the State, alleging that the State had been racially discriminatory in violation of the rule first laid down in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In connection with his Batson challenge, Rodriguez' counsel noted that the sole African-American member of the venire had been stricken by the State. The trial court noted that Rodriguez was not of the same race as the dismissed venireperson. In response, Rodriguez' counsel stated that the Batson rule could be applied if a defendant was of a minority group and stated that Rodriguez was Hispanic.

The trial court then observed that while the African-American member of the venire had been dismissed, a Hispanic member of the venire had not been stricken and concluded that Batson was not applicable. The trial judge, nevertheless, offered the State the chance to recite for the record why the African-American venireperson had been stricken.

The State first replied that Rodriguez' counsel's challenge was untimely because the jurors had already been sworn in before the Batson challenge was urged. Second, the State argued that Rodriguez was not of the "same class" as the dismissed venireperson. Finally, the State said that the reason for the use of the peremptory challenge was that the dismissed venireperson had been "on a prior jury and didn't indicate whether [the verdict] was guilty or not guilty, and I assumed it was not guilty."

The trial court overruled Rodriguez' Batson challenge "probably on all three grounds."

With respect to the substance of the case, the first witness for the State was Patricia Balvans, the office manager for and a longtime employee of Sapp, the victim. Balvans testified that she had first seen Rodriguez in February 1996, when he came into Sapp's insurance office in the afternoon. Rodriguez apparently had attempted to assert a claim on an insurance policy that had been sold to him by an agent working for Sapp, but which policy was issued by another company. Balvans testified that Rodriguez seemed agitated and demanded that Sapp's office issue him a check. Balvans stated that she attempted to reason with him, but finally asked him to leave. When he refused, she summoned Sapp.

Balvans testified that after she left Sapp and Rodriguez in Sapp's office, she could hear loud voices, but could not make out what was being said. Rodriguez left soon after. Balvans said that after Rodriguez left the office, she and the other employees had locked the doors and moved several of the vehicles on the premises to someplace where they would be safer.

Balvans testified that about an hour after he left, Rodriguez called Sapp at his office on the telephone. Balvans was able to hear Sapp and Rodriguez speaking on Sapp's speaker telephone, and while she did not hear all of the conversation, she did hear an exchange in which Sapp asked, "[A]re you threatening me?" and Rodriguez said, "I want my money or something bad is going to happen to you." Balvans testified that she believed Rodriguez' threat and that she was intimidated by him.

Sapp then testified for the State. Sapp stated that when he first encountered Rodriguez, Rodriguez was swearing and was very angry. Sapp said that while they were in his office, Rodriguez had threatened to "blow [him] away." When Sapp asked what that meant, Rodriguez said to Sapp, "You will be dead by tonight." Sapp stated that he had been scared by Rodriguez' threats.

Sapp further testified that later that afternoon, he was again threatened by Rodriguez on the telephone. Sapp then called the police. He also reported that later that afternoon, he received a telephone call from Elaine Rodriguez, evidently Rodriguez' mother. Sapp stated that she was very conciliatory toward him, but did state that Rodriguez was sometimes violent.

The next witness for the State was Deputy Sheriff Melissa Adkins. Adkins testified that she was called to Sapp's place of business, where she took a report from Sapp regarding the incident. On cross-examination, Adkins said that Sapp described Rodriguez as saying to him that "great harm will come to you or your property." After taking Sapp's report, she stated that she and another officer went to see Rodriguez that evening at his residence.

According to Adkins, Rodriguez was generally uncooperative and kept closing the door on the officers such that they had to shout back and forth through closed windows. Finally, said Adkins, her supervisor was able to contact Rodriguez on the telephone, and they were able to talk to him. Adkins said that Rodriguez denied making threats against Sapp's life, but admitted to telling Sapp that he would get some of his friends and "camp out" on Sapp's property and block access to Sapp's office until they were satisfied.

Adkins testified that Rodriguez was agitated and aggressive, so that the officers were nervous and wondered if he might have weapons in his house. Adkins said that they finally issued a citation for third degree assault, which they had to slip under the door of Rodriguez' residence.

On cross-examination, Adkins admitted to an error on her original report regarding the incident. Her report indicated that Rodriguez had come into Sapp's office at approximately 3:15 p.m. Adkins indicated that was an error and that that time should have been indicated as the approximate time of the telephone call from Rodriguez to Sapp, not of Rodriguez' visit to Sapp's office.

The final witness for the State was Monty Daganaar, an investigator for the Sarpy County sheriff's office and the arresting officer of Rodriguez. Daganaar indicated that when he arrested Rodriguez, Rodriguez was angry, particularly at Sapp, and demanded to know why Sapp had not been placed under arrest for being "a crook." Daganaar also indicated that the charges against Rodriguez had been upgraded from third degree assault to making terroristic threats after Daganaar's interview with Sapp, based on what Sapp told him at that time. He also stated that Sapp was genuinely frightened by Rodriguez' threats.

At the close of the State's case, Rodriguez moved for a directed verdict. The motion was taken under advisement. Thereafter, Rodriguez presented evidence.

The sole witness testifying for the defense was Elaine Rodriguez, Rodriguez' mother. Elaine Rodriguez indicated that her son was not violent, but did lose his temper sometimes. She denied telling Sapp on the telephone that Rodriguez was violent, although she admitted to calling Sapp at her son's request. She also testified that during her telephone conversation with Sapp, he indicated to her that her son had made threats against him.

At the close of all the evidence, Rodriguez' counsel said that he would "like to renew my motion to dismiss." The court indicated that the motion would be kept under advisement.

On July 11, 1996, the jury returned a verdict of guilty. Rodriguez filed a motion for new trial on August 5 based on insufficient evidence to sustain his conviction. Sentencing was set for September 6, but Rodriguez failed to appear on that date.

On December 6, Rodriguez appeared for sentencing. Prior to sentencing, Rodriguez presented argument on his motion for new trial. Rodriguez argued that the jury may have been prejudiced by his misbehavior during the closing arguments at trial. The substance of Rodriguez' alleged misbehavior is not apparent from the record. Rodriguez' counsel then reminded the trial court that he had moved for a directed verdict on two occasions and had not obtained a ruling. The trial court indicated that the first motion for directed verdict, made after the State's case, had been waived because Rodriguez had presented evidence on his own behalf. The trial court then denied the renewed motion for directed verdict, which had been made after all the evidence. Thereafter, the trial court denied Rodriguez' motion for new trial.

Rodriguez was sentenced to 6 months' imprisonment in the Sarpy County Jail. Rodriguez appeals.


Rodriguez assigns three errors, which he states as follows: (1) The district court erred by denying Rodriguez' Batson challenge, (2) the district court erred by failing to rule on Rodriguez' two motions for a directed verdict, (3) the court erred by not dismissing the case because the evidence was insufficient as a matter of law to convict Rodriguez.


A directed verdict in a criminal case is proper only when there is a complete failure of evidence to establish an essential element of the crime charged or when the evidence is so doubtful in character, lacking probative value, that a finding of guilt on such evidence cannot be sustained. State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991); State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991).

Regardless of whether evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as failure to direct a verdict, insufficiency of evidence, or failure...

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