Opinion
No. A-12-221
11-20-2012
STATE OF NEBRASKA, APPELLEE, v. JOHN D. CHOL, APPELLANT.
Gerard A. Piccolo, Hall County Public Defender, for appellant. Jon Burning, Attorney General, George R. Love, and Siobhan E. Duffy, Senior Certified Law Student, 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 Hall County: JAMES D. LIVINGSTON, Judge. Affirmed.
Gerard A. Piccolo, Hall County Public Defender, for appellant.
Jon Burning, Attorney General, George R. Love, and Siobhan E. Duffy, Senior Certified Law Student, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
INTRODUCTION
John D. Chol appeals from convictions of third degree assault and tampering with a witness, claiming that the district court erred in denying his motion for directed verdict as to both charges and erred in denying his request for a self-defense instruction. After our review, we find that the district court properly denied both motions for directed verdict, as well as the request for a self-defense instruction, and therefore we affirm.
FACTUAL BACKGROUND
An information was filed against Chol in the district court for Hall County on November 1, 2011, charging him with three counts: count I, second degree assault; count II, tampering with a witness, informants, or jurors; and count III, criminal mischief. Chol was arraigned with counsel present on November 8 and pled not guilty to all charges.
The jury trial began on January 10, 2012; however, on January 11, the prosecution filed an amended information, changing count I from second degree assault to third degree assault. The revised count I alleged that on August 17, 2011, Chol intentionally, knowingly, or recklessly caused bodily injury to Amadou Mbaye. At the outset of trial, the court granted Chol's motion in limine, providing that "[n]one of the witnesses, nor counsel, shall mention any matter before the jury regarding what Witness Gisman Makin believed . . . Chol's intent was when he made the statement, I hope you don't go to court, you will see."
The State commenced their case in chief by reading a stipulation to the jury: "Both parties jointly stipulate and agree that at all times relevant to this case that Defendant, . . . Chol, had a pending Hall County Court Case CR 11-984, which was scheduled for trial on August 25, 2011." Gisman Makin testified that on August 17, 2011, she was at a barbecue at a motel in Grand Island, Nebraska. Because she was not feeling well, she went to lie down in Mbaye's motel room. Later, Mbaye came in the room and went to sleep. She remembered hearing a knock on the door, which Mbaye opened. She also remembered that punches were being thrown and that Mbaye was fighting Chol. According to Makin, there were three people that came into the room: "Chol, Younic, and some other boy." When asked who was being hit, Makin testified that Mbaye was being hit. Makin testified as to Mbaye's injuries, depicted in photographs in evidence. Makin testified that before Chol left the room, he said to her: "I hope you don't go to court, you will see." On cross-examination, Makin explained that although she does not know what happened prior to the time she woke up, she saw Chol hit Mbaye, and that there was a fight amongst all the people in the room, but she did not know how the fight got started. A police officer with the Grand Island Police Department was dispatched on August 17 to the motel in reference to an assault. He testified that he observed Mbaye's superficial injuries.
After the State rested, Chol called another Grand Island police officer to testify. He indicated that on August 17, 2011, he received a call to the motel due to a disturbance of some kind. When he arrived, he observed Chol's injuries, portrayed in photographs in evidence. Chol also testified that on that date, he was in his cousin's room at the motel when he heard fighting next door. He said that he went in and tried to break up the fight between Mbaye and "this other Somali guy." Chol claimed that when he was in the middle of them breaking up the fight, Mbaye pushed him down. On cross-examination, the following exchange took place: "Q[:] On August 17, 2011, it's true that you hit . . . Mbaye; is that correct? A[:] I didn't hit him. Q[:] Your testimony is that you never hit him? A[:] I didn't hit him." The defense rested and then moved for a directed verdict on all three counts. The court overruled the motion as to counts I and II, and sustained the motion as to count III, the charge of criminal mischief.
During the jury instruction conference, Chol's counsel requested an instruction on defense of others or a justification instruction on the defense of others and defense of self. The State objected to such an instruction. The court denied Chol's request, reasoning that because Chol testified that he never hit Mbaye, there was no evidence that he took defensive action that caused Mbaye's injuries.
The jury returned a verdict of guilty on both the third degree assault and tampering with a witness charges. A sentencing hearing was held on March 13, 2012, during which the court sentenced Chol to 180 days' incarceration for the assault conviction and 90 days' incarceration for the tampering with a witness conviction, with the sentences to run consecutively. Chol now appeals.
ASSIGNMENTS OF ERROR
Chol assigns, renumbered and restated, that the district court erred in (1) not granting the motion for directed verdict on count I, third degree assault; (2) not granting the motion for directed verdict on count II, tampering with a witness; and (3) not giving a self-defense instruction when requested to do so.
STANDARD OF REVIEW
With respect to a directed verdict, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. State v. Thurman, 273 Neb. 518, 730 N.W.2d 805 (2007). 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. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).
Whether jury instructions given by a trial court are correct is a question of law. State v. Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009). When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
ANALYSIS
Motion for Directed Verdict as to Count I.
Chol first argues that the trial court erred in denying his motion for directed verdict on the ground that the evidence presented by the State was insufficient to support an assault charge because the State failed to prove how the fight started and, therefore, failed in its burden of proof.
Neb. Rev. Stat. § 28-310 (Reissue 2008) provides that a person "commits the offense of assault in the third degree if he . . . [i]ntentionally, knowingly, or recklessly causes bodily injury to another person." In its decision denying the motion for directed verdict, the trial court found there was evidence that Chol hit Mbaye, resulting in bodily injury. Viewing the evidence in the light most favorable to the State, we find there was evidence from which a jury could determine Chol was guilty of third degree assault. Chol argues that the State needed to prove that he was not acting in self-defense or that he was the initial aggressor, but he provides no authority in support of this argument. Chol did not argue a theory of self-defense and, in fact, testified that he never hit Mbaye. Further, regardless of whether or not Chol was the initial aggressor, there was evidence through Makin's testimony that Chol hit Mbaye and that it resulted in bodily injury, which is all that the statute requires. Chol cites to State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978), for the proposition that the State must prove how the fight started or who was the initial aggressor. Nowhere in Eagle Thunder is this proposition stated, or even indicated.
In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616 (1990). Here, there was not a complete failure of evidence to establish an element of third degree assault, nor was the evidence so doubtful in character, lacking probative value, so as to demand a directed verdict. Makin testified that she saw Chol hit Mbaye and that after the incident, Mbaye had injuries. This evidence was such that a jury could reasonably find Chol guilty of third degree assault. Thus, the court did not err in denying the motion.
Self-Defense Instruction.
Chol argues that there existed evidence of a cognizable claim of self-defense, thereby requiring a self-defense instruction. During the instruction conference, Chol requested a self-defense/defense of others instruction. The court denied the instruction based on the fact that Chol testified that he never hit Mbaye.
To establish reversible error from a court's refusal to give a requested jury instruction, an appellant has the burden to show that the tendered instruction is a correct statement of law, that the tendered instruction was warranted by the evidence, and that the appellant was prejudiced by the court's refusal to give the tendered instruction. See State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997). To successfully assert a claim of self-defense, one must have a both reasonable and good faith belief in the necessity of using force. In addition, the force used in defense must be immediately necessary and must be justified under the circumstances. Id. The trial court is not required to give the instruction where there is insufficient evidence to prove the facts claimed; however, it is not the province of the trial court to decide factual issues when it considers the evidence produced in support of one party's claim to be weak or doubtful. Id. It is only when the evidence does not support a legally cognizable claim of self-defense or the evidence is so lacking in probative value, so as to constitute failure of proof, that the trial court may properly refuse to instruct the jury on the defendant's theory of self-defense. Id.
While the trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense, here, it was Chol's own testimony that negated this possibility because he claimed that he did not hit Mbaye. Chol's defense during trial was simply that he had not struck Mbaye, meaning that there was no use of defensive force. Chol argues that his statement that he never hit Mbaye was taken out of context, as he had just previously testified that he and Mbaye fought, with Mbaye being the initial aggressor. Chol claims that the evidence shows he and Mbaye were in a fight because Chol testified that he was breaking up a fight between Mbaye and the "Somali guy" and the exhibits show Chol's injuries, which are indicative of a fight. However, "being in a fight" does not necessarily mean that Chol hit Mbaye. In other words, one can be in a fight without striking a blow, which was exactly Chol's story. On cross-examination, counsel for the State directly asked Chol whether he hit Mbaye, and Chol responded, "I didn't hit him." When pressed by the prosecution with, "Your testimony is you never hit him [Mbaye]?" Chol again stated, "I didn't hit him." The prosecutor did not ask whether Chol hit Mbaye first; the question was simply whether Chol hit Mbaye, to which Chol responded several times that he did not hit Mbaye. Thus, Chol's testimony was that he did not hit Mbaye, and this testimony is inconsistent with a theory of self-defense. A self-defense instruction is not warranted where there is no evidence that Chol had a reasonable and good faith belief in the necessity of using force or that the force used was immediately necessary and justified under the circumstances. In fact, there is no evidence that Chol used defensive force at all, as he denies striking Mbaye. We find that the trial court properly refused to instruct the jury on self-defense where Chol's repeated claim that he did not hit Mbaye was clearly inconsistent with a theory of self-defense. Chol wants it both ways, i.e., "I did not hit him, but I only hit him in self-defense." In State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2002), the court explained when the defendant does not meet the initial burden of proof to prove self-defense, and when self-defense is not the defendant's theory of the case, a self-defense instruction is not warranted. A theory of self-defense necessarily involves an inference or admission that the defendant harmed the victim, but that the defendant's acts were justified. Id. In the case at hand, there was a failure to prove entitlement to a self-defense instruction.
Motion for Directed Verdict as to Count II.
Chol's final argument is that the trial court erred in denying his motion for directed verdict on the ground that the evidence presented by the State was insufficient to support a tampering with a witness charge because the State failed to prove Makin was a witness in the case referenced in the stipulation read to the jury at the beginning of the trial. Thus, Chol argues that the State failed to carry its burden of proof on the tampering charge.
Neb. Rev. Stat. § 28-919 (Reissue 2008) provides in part:
(1) A person commits the offense of tampering with a witness or informant if, believing that an official proceeding or investigation of a criminal or civil matter is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to:
(a) Testify or inform falsely;
(b) Withhold any testimony, information, document, or thing;
(c) Elude legal process summoning him or her to testify or supply evidence; or
(d) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned.
The trial court agreed with Chol that the prosecution failed to present evidence that Makin was a witness in the domestic assault case mentioned in exhibits; however, the court found that the "investigation of a criminal matter" could also refer to the assault with which Chol was eventually charged. The trial court found that Chol should have known that the fight at the motel could result in a criminal investigation and possibly criminal charges. Thus, the first issue is whether Makin was a witness as that term is used in the charging statute, § 28-919. The Supreme Court has broadly articulated who is a witness for purposes of the tampering statute. In State v. McCoy, 227 Neb. 494, 418 N.W.2d 250 (1988), the court considered who is a "witness" under the tampering statute and cited to a Texas decision that noted that witness tampering statutes cover the broad spectrum of all persons who pose a threat to a criminal defendant because of what they know, citing Morlett v. State, 656 S.W.2d 603 (Tex. App. 1983). In McCoy, supra, the court also relied on Gandy v. State, 77 Neb. 782, 785, 110 N.W. 862, 864 (1906), where the court said a witness is "one who has knowledge of a fact or occurrence sufficient to testify in respect to it." Finally, in McCoy, supra, it was noted that the fact or occurrence of which the witness has knowledge must be relevant to investigation or prosecution involved in the tampering. Clearly, Makin, who said she saw Chol hit Mbaye, has knowledge which is relevant to the assault charge. Thus, she is a witness under § 28-919.
In the context of the ruling on the motion for a directed verdict on the tampering charge, Chol argues that he did not have notice of which "official proceeding or investigation" underpins the tampering charge. He cites us to State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011), where the defendant was charged with burglary, which requires breaking and entering real estate "with intent to commit any felony or with intent to steal property of any value." Neb. Rev. Stat. § 28-507 (Reissue 2008). In Nero, the Nebraska Supreme Court held that the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, and unless the court requires the State to specify the underlying felony or felonies supporting a burglary charge, defendants may be convicted on nothing more than speculation as to what might have happened. Thus, the court held that the State is required to specify the felony or felonies that the defendant intended to commit after the breaking and entering, and therefore the district court erred in denying the defendant's motion for a bill of particulars specifying any underlying felonies the State sought to establish. Id. The court reasoned that Nebraska's burglary statute requires specific intent, and therefore intent is an essential element of the offense. Id. Thus, the particular crime must be identified because, if anything other than a felony was intended, the breaking and entering did not constitute burglary. Id. Because the court found that the defendant had to speculate as to the State's apparently limitless theory of guilt, the defendant did not have the opportunity to prepare an adequate defense. Id. As a result, the defendant's conviction was reversed.
This case is different than Nero, supra, because Chol did not file a motion for a bill of particulars, which is the procedural context of Nero, supra. The pending case referenced in the stipulation at the beginning of the trial was never proved to be a criminal case, nor was it shown that Makin was a witness in such case. Thus, that case could not be the "criminal matter" underlying the tampering charge, as the trial judge correctly found. However, the trial judge found that the altercation that Makin witnessed at the motel was an "investigation of a criminal matter . . . about to be instituted" as contemplated in § 28-919. And the trial court found that Chol's statement to Makin that "I hope you don't go to court, you will see" could be taken as an attempt to get her to not testify about the events at the motel or to inform falsely about such. As a result, the trial court overruled the motion for a directed verdict on the tampering charge.
Recalling that our standard of review of the trial court's ruling on the motion for a directed verdict is to view the evidence in the light most favorable to the prosecution, we conclude, as did the trial court, that a rational trier of fact could have found the essential elements of the crime of tampering beyond a reasonable doubt. See State v. Nero, supra.
Finally, Chol argues that the State could not "switch" the underlying crime or investigation for the tampering charge from the case mentioned in the stipulation that was going to trial on August 27, 2010, to the assault charged in count I. There is no requirement that the State identify which underlying proceeding or investigation it was relying on to support the tampering charge, unless it would occur in the context of a motion for a bill of particulars, which Chol did not file. That said, Chol was involved in the motel fight, and he could reasonably believe that the police would become involved when he made the statement to Makin. Therefore, what Chol said to Makin at the motel is some evidence of witness tampering. As a result, the trial court properly overruled his motion for a directed verdict, and as based on the evidence recounted above, a reasonable jury could convict him of count II beyond a reasonable doubt.
CONCLUSION
For the foregoing reasons, we find that the trial court did not err in denying the motion for directed verdict as to assault or tampering with a witness, nor did the court err in denying Chol's request for a self-defense instruction.
AFFIRMED.