State v. Wheeler
| Decision Date | 01 November 2022 |
| Docket Number | A-21-1036 |
| Parties | State of Nebraska, appellee, v. January T. Wheeler, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Lori A. Maret Judge. Affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
January T. Wheeler appeals from his conviction and sentence on one count of possession of a firearm by a prohibited person. Following a jury trial in the district court for Lancaster County, Wheeler was found guilty of the above charge and sentenced to 25 to 30 years of incarceration. On appeal, Wheeler challenges the sufficiency of the evidence and the district court's rulings regarding the use of extrinsic evidence to impeach a witness. Wheeler also asserts the district court imposed an excessive sentence and raises five claims of ineffective assistance of trial counsel. For the reasons that follow, we affirm.
This case revolves around a shooting incident which occurred at approximately 12:30 a.m. on December 6, 2020, at a house located on Blue Flame Road in Lincoln, Nebraska. The ensuing law enforcement investigation led to Wheeler's arrest and he was charged with first degree assault (count 1), use of a firearm to commit a felony (count 2), and possession of a firearm by a prohibited person (count 3). After trial, a jury acquitted Wheeler on counts 1 and 2, and those charges are not at issue in this appeal. With respect to count 3, Wheeler stipulated that he had previously been convicted of a felony and was a person prohibited from possessing a firearm on or about December 6, 2020. Accordingly, the only question for the jury on count 3 was whether Wheeler possessed a firearm on or about that date.
On the night in question, law enforcement responded to three separate reports of arguing and gunshots in the area of Blue Flame Road. One of the calls came from a next-door neighbor, Kortney Jackson, who testified at trial that she heard people arguing outside just before 12:30 a.m. Jackson was prompted to call 911 when she heard someone say, "Do it, do it," followed by the sound of three gunshots in rapid succession.
Upon arrival, law enforcement officers located a trail of blood droplets extending from the end of the driveway to the front door of the home. The exigent circumstances justified a cursory search of the home, which revealed additional blood droplets inside. Outside the home, officers discovered four spent shell casings and one spent bullet. Officers also learned of an individual being treated for apparent gunshot wounds at a nearby hospital. This individual was later identified as Brandon Wagner. Wagner had three bullet wounds: one on the left side of his chest, one on the lower left side of his back, and a "grazing wound" on his upper back. Wagner survived his wounds but remained in the hospital for almost a month.
The evidence at trial revealed that a mutual friend, Kristian Hespen, introduced Wagner to Wheeler a couple weeks prior to the shooting, and the three men began working together to acquire and sell drugs. As part of this enterprise, Wagner gave Wheeler various items to either sell or exchange for drugs. Wagner estimated that the items were worth a total of approximately $400. It is unclear what happened to the items, but Wagner began to insist that Wheeler either pay for or return them. Tensions between Wagner and Wheeler continued to rise until the day of the shooting when Wagner confronted Wheeler at the house on Blue Flame Road.
When Wagner arrived at the house, his intentions were clear; "I was getting paid or we were fighting, one or the other." Wagner testified that he first encountered Hespen in the driveway of the home. After a brief exchange with Hespen, Wagner approached the front door of the home in search of Wheeler. According to Wagner, he opened the front door and immediately saw Wheeler holding a tan handgun with an extended clip. There was conflicting evidence as to precisely how the ensuing altercation played out; however, the record is clear that Wagner was ultimately shot three times, and both Wagner and Hespen positively identified Wheeler as the shooter. Wheeler was also injured in the altercation, and the trail of blood droplets discovered at the scene was later attributed to Wheeler.
Hespen testified that immediately after the shooting, while Hespen was helping Wagner into his car, Wheeler gave Hespen the gun and told him to "get rid of this." Hespen took the gun and later left it in an apartment located on Saint Paul Avenue. A few weeks later, law enforcement officers executed an unrelated search warrant at that apartment and seized a tan Glock 9 millimeter handgun with an extended clip. Wheeler's blood was discovered inside the barrel of the seized gun, and forensic analysis linked the gun to the spent casings and bullet discovered at the scene.
Upon examining the tan Glock 9 millimeter at trial, Hespen identified it as Wheeler's gun, noting a distinctive belt clip attached to the side of the gun. In addition to seeing Wheeler with the gun at the time of the shooting, Wagner and Hespen both testified to seeing the same gun at Wheeler's apartment sometime in the weeks leading up to the shooting. Wagner also testified that Wheeler was generally known to carry a gun around that time. Based on the evidence adduced at trial, the jury found Wheeler guilty on count 3, possession of a firearm by a prohibited person.
Following a presentence investigation, the district court sentenced Wheeler to 25 to 30 years of incarceration, with credit for 339 days served. In pronouncing the sentence, the court emphasized Wheeler's "absolute denial" of responsibility and his record of criminal behavior. Wheeler appealed through new counsel.
Wheeler assigns that the district court erred in (1) entering a guilty verdict unsupported by sufficient admissible evidence, (2) not allowing defense counsel to impeach certain witnesses through extrinsic evidence, and (3) imposing an excessive sentence.
Wheeler also assigns that his trial counsel was ineffective for failing to (1) object to evidence that Wheeler was previously seen with a gun, (2) object to evidence of Wheeler's character for possession of a firearm, (3) offer cell phone records to impeach Wagner's testimony, (4) call three witnesses, and (5) properly impeach Wagner's testimony.
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 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. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022). The relevant question 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. Id.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules and judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021). Where 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. Id.
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal; the determining factor is whether the record is sufficient to adequately review the question. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The record is sufficient to resolve on direct appeal a claim of ineffective assistance of counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to the defendant's claims. Id.
Wheeler first challenges the sufficiency of the evidence against him on count 3. Wheeler was charged with possession of a firearm by a prohibited person, which is a Class ID felony in violation of Neb. Rev. Stat. § 28-1206(1) (Reissue 2016). In pertinent part, § 28-1206(1) provides that a person commits the offense if he or she possesses a firearm and has been previously convicted of a felony. Wheeler stipulated that he had been previously convicted of a felony, so the only question on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that Wheeler possessed a firearm on or about December 6, 2020.
Wheeler argues it was inconsistent for the jury to simultaneously find him guilty of possessing a firearm and acquit him of the related assault charges. The State counters that the verdict is not necessarily inconsistent because the jury could have acquitted Wheeler on counts 1 and 2 on the grounds of self-defense. While the State briefly mentioned self-defense in closing arguments, we note that Wheeler did not raise self-defense at trial, and...
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