Opinion
No. A-10-998.
09-13-2011
STATE OF NEBRASKA, APPELLEE, v. TYLER W. BRITT, APPELLANT.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: 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 Dawson County, JAMES E. DOYLE IV, Judge, on appeal thereto from the County Court for Dawson County, CARLTON E. CLARK, Judge. Judgment of District Court affirmed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Following a jury trial, Tyler W. Britt was convicted in the county court for Dawson County of driving under the influence (DUI), first offense, and of the aggravated crime of driving with a concentration of more than .15 of 1 gram of alcohol per 210 liters of breath. Britt appealed to the district court, which affirmed his conviction. On appeal to this court, Britt asserts the county court erred in admitting certain evidence, giving the jury instruction relating to the material elements of the offense, and giving the verdict forms. Finding no error in the admission of evidence or verdict forms, we affirm. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
On February 20, 2009, the State filed a complaint in the county court charging Britt with first-offense DUI with an alcohol concentration of .15 of 1 gram or more per 210 liters of breath.
On December 7, 2009, Britt filed a second motion in limine, asking the county court to enter an order prohibiting the State from:
[O]ffering any evidence regarding the results of any chemical test for the reason that the methodology in calibrating the breath test device is dependent upon testimony showing that the device is properly working. Unless that person who was involved in preparing the known substance . . . used to calibrate the internal reference standards is available for cross examination, any affidavits or other certificates regarding the scientific analysis must be excluded for the reason that [Britt] would be denied his right of confrontation more specifically described in [Melendez-Diaz v. Massachusetts, _____ U.S. _____ , 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)].
At the hearing on his motion, Britt argued that the State should not be allowed to introduce his breath test results into evidence unless it proved that the DataMaster machine used to test Britt's breath had been properly calibrated before it was placed into service, i.e., that the DataMaster machine had properly analyzed a known simulator solution. Specifically, Britt argued that the simulator solution was essential to calibration, so under Melendez-Diaz v. Massachusetts, _____ U.S. _____ , 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), Cecil B. Garner, the individual who prepared the known breath simulator solution, must testify and be subject to cross-examination. The State argued that an affidavit of certification for the solution from Garner should be sufficient because under State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007), the affidavit was nontestimonial and not prepared for the purpose of trial. The county court denied Britt's motion.
A jury trial was held on December 21 and 22, 2009. At the start of trial, Britt renewed his second motion in limine and made a continuing objection based on his motion. The county court recognized that Britt's objections were ongoing without specifically stating that they were overruled. During the course of trial, Britt objected to the admission of various exhibits, including exhibits 16 and 18. Exhibit 16 is a report of a 190-day check of the DataMaster machine. The court received exhibit 16 over Britt's hearsay and Sixth Amendment confrontation objections. Britt also objected to exhibit 18, the affidavit from Garner containing a chemical analysis certification of the alcohol breath simulator solution, claiming that admission of the affidavit violated his Sixth Amendment rights to confront and cross-examine witnesses against him, and he also objected on the basis of foundation, hearsay, best evidence, and relevancy. In the affidavit, Garner certified that he was designated by the Nebraska Department of Health and Human Services as a supplier of alcohol breath simulator solutions; that on August 7, 2008, he "prepared the alcohol breath simulator solution numbered Lot #08803 at a value of .080 of a gram of alcohol per 210 liters of breath (+/-0.002) when used in an approved simulator operating at 34 degrees +/-0.5 degrees C"; that on August 7, he conducted a chemical analysis of the solution which revealed the value to be .08; and that the container of solution was sealed on August 7 by "RepCo Marketing Inc.," a company of which he was the president. The court overruled Britt's objections and received Garner's affidavit into evidence. With respect to both of these exhibits, the court noted that Britt's objections were ongoing.
At trial, Britt also objected to jury instruction No. 5, concerning the material elements of the crime. Britt argued that the instruction did not delineate the material elements as outlined by the State in the complaint. Britt also objected to the proposed jury verdict forms, arguing that the issue of whether Britt had a concentration of more than .15 of 1 gram of alcohol per 210 liters of breath was an aggravation or "enhancement" and should be considered separately. The county court overruled Britt's objections and presented the instructions and verdict forms as submitted. Further details of the jury instructions and verdict forms are set forth in the analysis section below.
The jury found Britt guilty of DUI with a breath alcohol concentration of .15 of 1 gram or more. Following his sentencing by the county court, Britt appealed to the district court. In his appeal to the district court, Britt asserted that the county court, among other things, erred in failing to grant his second motion in limine, receiving evidence/testimony in which he was not allowed to confront and cross-examine witnesses in violation of his Sixth Amendment rights, instructing the jury regarding aggravation by including it as an element of the underlying DUI charge and not having the aggravation issue determined after the verdict on the underlying DUI charge, and giving the jury verdict forms to the jury over Britt's objection.
Following a hearing, the district court entered an order on September 14, 2010, affirming Britt's conviction and sentence. The court found Britt's contentions under the Confrontation Clause of the Sixth Amendment to be without merit. The court also determined that the jury instructions and verdict forms, considered as a whole, fairly presented the law in a manner that the jury could not be misled. The court found no prejudicial error in the wording or structure of the instructions or verdict forms. Because the decisions below conformed to the law, and were abundantly supported by competent evidence and not arbitrary, capricious, or unreasonable, the court affirmed Britt's conviction and sentence. We have set forth further details of the district court's reasoning in the analysis section below.
Britt subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Britt asserts that the county court and district court erred in (1) finding that Garner's affidavit was not testimonial in nature and that Britt did not have a right to confront and cross-examine Garner, (2) finding that exhibits 16 and 18 were not inadmissible hearsay, (3) finding that jury instruction No. 5 was properly given over Britt's objection, and (4) finding that the verdict forms were properly given over Britt's objection.
STANDARD OF REVIEW
Both the district court and the Nebraska Supreme Court generally review appeals from the county court for error appearing on the record. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008). 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.
ANALYSIS
Garner's Affidavit.
Britt asserts that the county court and district court erred in finding that Garner's affidavit was not testimonial in nature and that Britt did not have a right to confront and cross-examine Garner. Britt was convicted after the State offered evidence that Britt's breath alcohol content, as determined by a breath test, was in excess of .15 of 1 gram or more by weight of alcohol per 210 liters of his breath. Britt argues that the county court should not have received this evidence over his objection because he was not allowed to confront and cross-examine Garner, the testimony of whom was necessary to show that the breath testing device was working properly at the time of the breath test. Specifically, Britt argues that Garner was required to be present at trial to prove that the known alcohol breath simulator solution was what it purported to be. The State offered exhibit 18, Garner's affidavit, in which Garner averred that the alcohol simulator solution, the solution that was used for the initial calibration of the DataMaster machine, was in fact what it purported to be. As aptly summarized from the trial evidence by the district court:
When a breath testing device such as the Data[M]aster CDM is first placed into service at a testing site, it's [sic] calibration includes checking the internal quartz reference standard against a known alcohol simulator solution. Thereafter, the internal quartz reference standard is used to ensure the Data[M]aster maintains its calibration and is in proper working order at the time of subsequent tests. In short, the calibration of the internal quartz reference standard in the Data[M]aster machine by use of the known alcohol simulator solution is a test of the accuracy of the Data[M]aster testing device.Before the district court, Britt argued that he had the right to confront and cross-examine the individual responsible for the known alcohol simulator solution to determine how the solution was prepared, if it was prepared in a reasonable scientific manner, if the preparer had the necessary scientific credentials, whether the bottle of solution was sealed properly before it was sent out by the manufacturer, and any other foundational questions.
The Sixth Amendment to the U.S. Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him or her, and the main and essential purpose of confrontation is to secure the opportunity of cross-examination. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), cert. denied _____ U.S. _____ , 130 S. Ct. 1887, 176 L. Ed. 2d 372 (2010). Where "testimonial" statements are at issue, the Confrontation Clause demands that such out-of-court hearsay statements be admitted at trial only if the declarant is unavailable and there has been a prior opportunity for cross-examination. State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007), citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Under Crawford, testimony is typically a "'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U.S. at 51. And as to testimonial statements covered by the Confrontation Clause, the Crawford Court stated:
Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," . . . "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," . . . "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" . . . .541 U.S. at 51-52.
Britt relies on Melendez-Diaz v. Massachusetts, _____ U.S. _____ , 129 S. Ct. 2527, 173 L. Ed. 2d 314 (2009), wherein the U.S. Supreme Court expanded the definition of testimonial statements covered by the Confrontation Clause to include affidavits containing the results of forensic analysis of seized substances. In Melendez-Diaz, the defendant was charged with distribution of cocaine. At trial, the prosecution successfully introduced certificates from a state laboratory, stating that material seized by police tested positive for cocaine. The certificates also reported the weight of the cocaine. On appeal, the U.S. Supreme Court considered whether these certificates or affidavits were testimonial, making the affiants witnesses subject to the defendant's right of confrontation under the Sixth Amendment. The Court found that the documents at issue fell within the core class of testimonial statements described in Crawford, supra. Further, the Court reasoned that because the affidavits were "' "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial"'" and their sole purpose was to provide "'prima facie evidence of the composition, quality, and the net weight' " of the analyzed substance, the affidavits were testimonial in nature and the analysts who made the affidavits were witnesses for Sixth Amendment purposes. Melendez-Diaz, 129 S. Ct. at 2532. In a footnote, the Court also stated:
[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. . . . Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.Id., 129 S. Ct. at 2532 n.1.
The State relies on State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007), a case decided by the Nebraska Supreme Court prior to the U.S. Supreme Court's decision in Melendez-Diaz, supra, involving the same issue and virtually the same facts, with respect to the admissibility of chemical breath test results, as the present case. Fischer also involved the question of whether a certificate from Garner was testimonial in nature. The Fischer court concluded that the certificate verifying the concentration of the simulator solution in that instance was not testimonial in nature and not subject to further Confrontation Clause analysis. Specifically, the court found that the statements in the certificate were limited to Garner's certifications regarding the concentration of the alcohol breath simulator solution and did not pertain to any particular pending matter. The court reasoned that the primary purpose of the statements in the certificate was to ensure that the solution used to calibrate and test breath testing devices was of the proper concentration and that the statements in the certificate were required to be made as an administrative function regardless of whether the statements would eventually be used in any criminal prosecution. The court further observed that the certificate was prepared in a routine manner without regard to whether the certification related to any particular defendant and noted that the statements in the certificate in that case were made 4 months prior to when the crime occurred. The court concluded that the statements made in Garner's certificate were too attenuated from the prosecution of the charges against the defendant for the statements to be testimonial in the sense required under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and the Confrontation Clause.
In the present case, after applying the reasoning of both Fischer, supra, and Melendez-Diaz v. Massachusetts, _____ U.S. _____ , 129 S. Ct. 2527, 173 L. Ed. 2d 314 (2009), to the facts of this case, the district court found exhibit 18 to be nontestimonial in nature, stating:
[T]he affiant who signed exhibit 18 concerning the known alcohol simulator solution did so with no specific prosecution in mind, he attested to a fact that did not constitute any element of the offense charged against Britt, the affiant did not attest to or provide prima facie evidence of the composition, quality or the weight of the analyzed substance, and the affidavit related to the accuracy of the Data[M]aster testing machine. The court finds exhibit 18 is "nontestimonial evidence" falling outside the confines of the confrontation clause as described by Crawford and Melendez-Diaz.(Emphasis in original.) The district court noted that the Melendez-Diaz Court anticipated that not all laboratory certificates are testimonial in nature, including those which concern the routine testing of the accuracy of laboratory machines, and that the Melendez-Diaz expansion of the definition of testimonial statements did not impose an obligation on the State to produce in person anyone whose testimony might be relevant in establishing the accuracy of a testing device. Accordingly, the court rejected Britt's contentions under the Confrontation Clause and found that the State was not required to make available at trial the technician who prepared the known alcohol simulator solution necessary for testing the accuracy of the DataMaster machine.
We agree with the district court's analysis. The Nebraska Supreme Court has already determined in Fischer, supra, that an essentially identical certificate was nontestimonial in nature. There is nothing in Melendez-Diaz, supra, that requires a different outcome in this case. Unlike the certificates in Melendez-Diaz which were used to prove an essential fact of the State's case against the defendant in that case, namely, that the substance seized from the defendant was cocaine, the certificate in this case was not used to establish any of the facts necessary to the State's case. The testing and analysis in Melendez-Diaz was clearly performed on a particular substance--after it was seized from the defendant--and in anticipation of using that evidence against the defendant at trial. The only thing Garner's affidavit did in this case was establish that a particular lot of simulator solution had a value of .08 when it was tested and sealed on August 7, 2008, over 6 months before Britt was charged with DUI. Neither the certificate nor the solution proved that the machine was functioning properly when it was used to test Britt. That proof was provided at trial through the testimony of the maintenance officer, Michelle Brandenbert, who testified that she had calibrated and maintained the DataMaster machine in accordance with her training and that the machine was working properly when it was used to test Britt on February 13, 2009. Because Garner's affidavit was not testimonial in nature, Britt's assignment of error is without merit.
Exhibits 16 and 18.
Britt asserts that the county court and district court erred in finding that exhibit 16, the report showing that the DataMaster machine's 190-day check results complied with title 177 of the Nebraska Administrative Code, and exhibit 18, Garner's affidavit, were not inadmissible hearsay. Britt argues that even if we find that Garner's affidavit was not testimonial in nature for Confrontation Clause purposes, exhibits 16 and 18 should have been excluded as hearsay. Britt raised hearsay objections to both exhibits at trial, which objections were overruled by the county court; however, he did not include the overruling of his hearsay objections in the errors he alleged on appeal to the district court. Accordingly, the hearsay issue was not addressed by the district court. Where a cause has been appealed to a higher appellate court from a district court exercising appellate jurisdiction, only issues properly presented to and passed upon by the district court may be raised on appeal to the higher court. State v. Anderson, 14 Neb. App. 253, 706 N.W.2d 564 (2005). In the absence of plain error, where an issue is raised for the first time in the higher appellate court, it will be disregarded inasmuch as the district court cannot commit error in resolving an issue never presented and submitted for disposition. Id. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. Davenport, 17 Neb. App. 1, 755 N.W.2d 816 (2008). Here, although the hearsay issue was raised before the county court, it was not presented to or passed on by the district court. We decline to address Britt's arguments further.
Jury Instruction No. 5.
Britt asserts that the county court and district court erred in finding that jury instruction No. 5 was properly given over Britt's objection. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision. State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011). In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Id. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal. Id.
Jury instruction No. 5 provides that the State was required to prove by evidence beyond a reasonable doubt:
(1) That on or about the 13th day of February, 2009;
(2) That . . . Britt was operating or in actual physical control of a motor vehicle . . . ; and
(3) That at the time . . . Britt was operating or in physical control of a motor vehicle, [he] was under the influence of alcoholic liquor; or
(4) That at the time . . . Britt was operating or in physical control of a motor vehicle, [he] had a concentration of eight-hundredths (.08) of one gram or more by weight of alcohol per two hundred ten (210) liters of his breath; and
(5) That these events occurred in Dawson County, Nebraska.
Under the law, these elements described in [paragraphs 3 and 4] constitute a single offense. As a result, you need not agree unanimously on whether . . . Britt was under the influence of alcoholic liquor or whether [he] had a concentration of eight-hundredth[s] (.08) of one gram or more by weight of alcohol per two hundred ten
(210) liters of his breath, so long as you agree unanimously that the State has established either [of] the elements described in [paragraphs 3 and 4] beyond a reasonable doubt.
If you decide that the State proved each element of the charge of [DUI] beyond a reasonable doubt, you must find . . . Britt guilty of [DUI]. Otherwise you must find . . . Britt not guilty of [DUI].
If you find from the evidence that . . . Britt is guilty of [DUI], then you must next decide whether the State has proven beyond a reasonable doubt that . . . Britt had a concentration of .150 of one gram or more by weight of alcohol per 210 liters of breath as part of this offense.
The burden of proof is always on the State to prove beyond a reasonable doubt the material element[s] of the crimes charged, and this burden never shifts.
Britt argues that this jury instruction No. 5 was erroneous because it allowed the jury to decide the aggravation issue of whether he had a breath alcohol content of .15 or more at the same time it decided his guilt for the underlying DUI. Britt asserts that the jury should have had to determine first whether he was guilty of DUI, and then, if it found him guilty, the jury should have been sent back to deliberate on whether he had a breath alcohol content of .15 or more.
In State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010), the Nebraska Supreme Court reviewed a jury instruction that was substantially similar to the instruction at issue in this case. In Casillas, the defendant argued that the jury was first required to determine unanimously that he had a breath alcohol content of .08 before determining unanimously that he had a breath alcohol content of over .15. The defendant argued that unless the court required a unanimous decision that his breath alcohol level was greater than .08 before a unanimous decision that his breath alcohol level was greater than .15, the jury might convict him of being over .15 without ever agreeing that he was over .08. The Supreme Court found no merit to the argument, observing that if the jury unanimously agreed that the defendant had a breath alcohol content of over .15, then it also unanimously agreed that he had a breath alcohol content of at least .08. Casillas illustrates that there is nothing wrong with the jury's deciding an aggravation issue at the same time as the underlying verdict, and in fact, in the present case, the district court applied the reasoning and rationale of Casillas to Britt's claims in finding that jury instruction No. 5 was not erroneous.
Rather than acknowledging Casillas, Britt relies on Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), to support his claim that the instruction was erroneous because it allowed the jury to consider the aggravation issue at the same time it considered whether Britt had committed the offense of DUI. Ring was a capital sentencing case, and the issue was whether the aggravating factors which permitted a death sentence must be found by a jury. The U.S. Supreme Court held, "Because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." 536 U.S. at 609. The Court's decision in Ring was based on its decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), wherein the Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In the present case, the district court found that neither Ring nor any Nebraska case law requires the procedure Britt advances. We agree. There is nothing in jury instruction No. 5 that is inconsistent with the rule set forth in Ring.
Britt also argues that the jury instruction is erroneous in that it does not tell the jury what to do once it has determined whether the State proved beyond a reasonable doubt that he had a breath alcohol concentration of .15 or more. Britt argues that the jury was not given the option in the instruction to find him not guilty if the State had not met its burden. As will be seen below in the discussion concerning the verdict forms, the jury was in fact given such an option in the verdict forms. For purposes of the present assignment of error, we note, as did the district court, that one of the verdict forms allowed the jury to find Britt guilty of DUI, while at the same time finding the State did not prove that Britt had a breath alcohol concentration of .15 or more. The verdict forms when read together with the jury instructions properly instructed the jury on the options available to it.
Finally, Britt argues that jury instruction No. 5 was erroneous in that it did not instruct the jury that the .15 breath alcohol concentration must be present when he was operating a motor vehicle. We disagree. The instruction clearly provides that whether Britt is operating a motor vehicle is a material element of the charge and that the State must prove each element beyond a reasonable doubt. The instruction also clearly provides that if the jury finds Britt guilty of DUI, it must next decide whether his breath alcohol concentration was .15 or more "as part of this offense." Certainly, if the jury agreed that Britt had a breath alcohol concentration of .15 or more, it had already unanimously agreed that he was operating a motor vehicle as part of the offense.
In short, jury instruction No. 5, when read together with the other jury instructions and the verdict forms in this case and taken as a whole, correctly states the law, is not misleading, and adequately covers the issues supported by the pleadings and the evidence. See, State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011); Neb. Rev. Stat. § 60-6,196 (Reissue 2010); Neb. Rev. Stat. § 60-6,197.03(2) (Cum. Supp. 2008). Accordingly, the district court did not err in finding that the instruction was properly given by the county court.
Verdict Forms.
Britt asserts that the county court and district court erred in finding that the verdict forms were properly given over Britt's objection. There are five verdict forms found in the record on appeal. One form allowed the jury to find Britt "Not guilty of driving under the influence." Another verdict form allowed the jury to find Britt "Guilty of driving under the influence. Furthermore, we the jury find that the State did not prove beyond a reasonable doubt that . . . Britt had a concentration of .150 of one gram or more by weight of alcohol per 210 liters of breath." The third verdict form allowed the jury to find Britt "Guilty of driving under the influence. Furthermore, we the jury find that the State did prove beyond a reasonable doubt that . . . Britt had a concentration of .150 of one gram or more by weight of alcohol per 210 liters of breath." Additionally, the record contains a fourth form, which allowed the jury to find Britt "Not guilty of driving while under the influence of alcohol as charged in count 1 of the complaint filed herein," and a fifth form, which allowed a finding of "Guilty of driving while under the influence of alcohol as charged in count #1 of the complaint filed herein."
Britt argues that two of the five forms gave the jury the opportunity to find Britt guilty of the crime charged and that this emphasized a guilty verdict. On the other hand, two of the forms gave the jury the option to find Britt not guilty of anything. Clearly, the last two verdict forms were superfluous as they overlap with the first three forms. We note that it is not absolutely clear from the record, however, that all five forms were given to the jury. While all five forms appear in the transcript, there is nothing in the bill of exceptions from the jury instruction conference or in the county court's actual instructions to the jury that specifies the number of forms actually given to the jury. In instructing the jury, the court stated, "Verdict forms have been prepared for you and you will have them in the jury room. You are to complete only one of them, but you are to return all forms. The instructions say both forms, but there are more than two, so I've said all." Regardless, assuming that all five forms were given to the jury, we find no prejudicial error. The district court did not err in affirming the county court's decision to give the verdict forms.
Britt also reasserts some of his arguments concerning timing of and process by which the jury was to determine the aggravation issue. We have already addressed those arguments above and need not consider them again in connection with this assignment of error.
CONCLUSION
The district court did not err in affirming Britt's conviction and sentence.
AFFIRMED.