State v. Roebuck
| Decision Date | 31 May 2022 |
| Docket Number | A-21-342. |
| Citation | 31 Neb.App. 67,976 N.W.2d 218 |
| Parties | STATE of Nebraska, appellee, v. Richard L. ROEBUCK, appellant. |
| Court | Nebraska Court of Appeals |
Robert Wm. Chapin, Jr., Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.
Richard L. Roebuck appeals from an order of the Lancaster County District Court affirming his conviction and sentence for assault and battery in violation of Lincoln Mun. Code § 9.12.010 (1997). For the reasons that follow, we affirm.
On December 2, 2019, the State filed a criminal complaint against Roebuck in the county court for Lancaster County, alleging one count of third degree domestic assault in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue 2016). On December 18, the State filed an amended complaint alleging one count of assault and battery in violation of Lincoln Mun. Code § 9.12.010. Roebuck pled not guilty to the amended complaint, and the matter was set for a bench trial.
The matter proceeded to a bench trial on February 27, 2020, wherein the following evidence was adduced: At approximately 6:30 a.m. on November 28, 2019, F.P. was roused awake by his mother to find a woman screaming for help outside of their house on North 28th Street in Lincoln, Nebraska. According to F.P., the woman was crying and shaking, and he observed that she kept "looking back over her shoulder." F.P. heard the woman say " ‘[m]y boyfriend hit me.’ " Roebuck objected to this testimony on hearsay grounds, and the court overruled that objection. F.P. let the woman inside the house and instructed his sister to call the police. The woman continued "shaking and crying" and indicated she was experiencing pain in her ribs. F.P. recalled that the woman said something about a preexisting injury to her ribs which was aggravated because "he had hit her in the ribs."
F.P.’s sister called the 911 emergency dispatch service, and a recording of the call was admitted into evidence. Within the first 30 seconds of the recording, a woman's voice is heard in the background saying either "he was hitting me, punching me" or "he was kicking me, punching me." F.P. testified that the voice heard in the background is that of the woman he discovered outside the house. Roebuck objected to the admission of this evidence on both hearsay and confrontation grounds. With respect to hearsay, the court stated that "foundation for excited utterance has been established." With respect to confrontation, the court agreed that much of the recorded call consisted of testimonial responses to the 911 operator's questions. However, the court admitted the statement above as nontestimonial because it was not prompted by any question from the 911 operator.
Within approximately 10 minutes of the 911 call, Lincoln police officers arrived on the scene. Officer Zack Sanchez testified that he arrived at the residence on North 28th Street and made contact with the victim. Sanchez observed her sitting on the couch, and he testified that "[s]he looked to be actively upset, and her demeanor showed signs that she may be in some sort of fear." After entering the house, but prior to making contact with the victim, Sanchez testified that he overheard her "telling the individuals who lived there what was going on." Specifically, Sanchez testified that he heard the victim say she and her boyfriend "had gotten into an argument, which led to him being aggressive and grabbed her, which led her to come over across the street." Roebuck objected to this testimony on hearsay and foundation grounds, and the court overruled that objection.
Sanchez testified that he eventually introduced himself and began speaking with the victim, at which point he noticed a small cut on her head. Sanchez observed that she was speaking in a "trembling manner, like she was fearful." Sanchez also testified that he observed minor swelling on the victim's head and a bruise "which grew increasingly darker as the conversation went on." Based on his experience with simple bruising and swelling, Sanchez testified that her injuries appeared to be recent.
After trial, on February 28, 2020, the court found Roebuck guilty on one count of assault and battery in violation of Lincoln Mun. Code § 9.12.010 and ordered a presentence investigation. The court reconvened for sentencing on May 1, but the matter was continued to allow Roebuck an opportunity to enroll in domestic violence classes. The court reconvened again on June 19, but the matter was once again continued in light of a broadcast for Roebuck's arrest in connection with a "felony domestic-related assault." The court reconvened again on June 26, at which point Roebuck was in custody on a felony charge. The court ultimately sentenced Roebuck to the maximum term of 6 months in the county jail.
Roebuck appealed to the district court for Lancaster County, assigning that the county court erred in (1) admitting statements of the victim through Sanchez over hearsay objections, (2) admitting statements of the victim through Sanchez over confrontation objections, (3) admitting statements of the victim through F.P. over hearsay objections, (4) finding Roebuck guilty without sufficient evidence, and (5) imposing an excessive sentence. Roebuck also assigned that his trial counsel was ineffective in a number of respects. Upon reviewing the record and hearing argument, the district court affirmed Roebuck's conviction and sentence. This appeal followed.
Roebuck assigns, restated, that the district court erred in (1) affirming the county court's admission of statements of the victim through Sanchez over hearsay objections, (2) affirming the county court's admission of statements of the victim through Sanchez over confrontation objections, (3) affirming the county court's admission of statements of the victim through F.P. over hearsay objections, (4) affirming the county court's finding of guilt without sufficient evidence, (5) affirming the county court's imposition of an excessive sentence, and (6) failing to find that Roebuck was entitled to a jury trial.
Additionally, Roebuck assigns that his trial counsel was ineffective for (1) failing to call all known witnesses, (2) failing to object on grounds of confrontation to statements made by the victim admitted through the testimony of Sanchez, (3) failing to fully and completely cross-examine Sanchez, (4) failing to fully and completely cross-examine Officer Thomas Domanski, (5) failing to fully and completely cross-examine F.P., (6) failing to properly advise Roebuck on the decision whether to testify at trial, and (7) failing to object to the amended complaint.
Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. State v. Collins , 307 Neb. 581, 950 N.W.2d 89 (2020). When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. When deciding appeals from criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in district court. Id.
A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. State v. Hansen , 252 Neb. 489, 562 N.W.2d 840 (1997). The trial court's findings have the effect of a jury verdict and will not be set aside unless clearly erroneous. Id.
When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Childs , 309 Neb. 427, 960 N.W.2d 585 (2021). Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. Id.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
State v. Collins, supra. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within statutory limits. Id. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. Id. We determine as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance. Id.
Roebuck's first and third assignments of error allege that the district court erred in affirming the county court's admission of statements allegedly made by the victim over hearsay objections. Because the victim failed to appear for trial, despite being ordered to do so, the State sought to introduce certain statements allegedly made by her through the testimony of other witnesses.
Chronologically, the first statement made by the victim and admitted at trial...
To continue reading
Request your trial
-
State v. Wheeler
...appeal to challenge trial counsel's failure to call witnesses. See State v. Roebuck, 31 Neb.App. 67, 976 N.W.2d 218 (2022). As we did in Roebuck, apply the rule clearly articulated in Blake; Hill, and Ash notwithstanding. Accordingly, we conclude that Wheeler has preserved his claim of inef......
-
State v. Roebuck
...31 Neb.App. 67 State of Nebraska, appellee, v. Richard L. Roebuck, appellant. No. A-21-342Court of Appeals of NebraskaMay 31, 1. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. 2......
-
State v. Simpson
...appears to refer to statements made by certain individuals in police reports attached to his postconviction motion. See State v. Roebuck, 31 Neb.App. 67, 976 N.W.2d 218 (2022) (Confrontation Clause only applies to testimonial statements; term "testimonial" applies to prior testimony at prel......