Opinion
No. A-12-020.
10-09-2012
STATE OF NEBRASKA, APPELLEE, v. KEVIN A. JORDAN, APPELLANT.
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant. Jon Bruning, Attorney General, and George R. Love 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 Douglas County: PETER C. BATAILLON, Judge. Affirmed.
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
INTRODUCTION
Kevin A. Jordan appeals from his conviction in the district court for Douglas County for two counts of robbery. Jordan argues that the district court erred in failing to sustain his motion to suppress a photographic lineup, in finding that the State provided a race-neutral explanation for striking the only African-American member of the jury pool, in permitting the State to call an adverse witness solely to impeach his credibility before the jury, in finding the evidence sufficient to convict him of robbery, and in imposing excessive sentences. Because we find no merit to any of Jordan's assignments of error, we affirm.
BACKGROUND
The State filed an information in the district court on April 12, 2011, charging Jordan with two counts of robbery in violation of Neb. Rev. Stat. § 28-324(1) (Reissue 2008), both Class II felonies. Specifically, the State alleged that on March 6, Jordan forcibly, and by violence, or by putting in fear, took money or personal property with the intent to steal from both Jennifer Schiffbauer and Jessica Au Buchon.
Jordan filed a motion seeking to suppress and exclude from use against him any and all out-of-court identifications of him and incourt identification testimony at the time of trial by witnesses for the State. Following a suppression hearing, the district court found that the photographic lineup used by police in this case was not improperly suggestive or prejudicial. We have set forth further details concerning the motion to suppress in the analysis section below.
Jordan also filed a motion in limine, seeking to exclude the testimony of a witness named "Felix Jacques." Jordan alleged that the sole basis for the State's calling Jacques as a witness to testify at trial would be to impeach his testimony with otherwise inadmissible hearsay regarding prior statements Jacques provided to police. Following a hearing, the district court sustained Jordan's motion, stating that the State could not call Jacques for the sole purpose of impeaching him but also stating that "we'll just have to kind of play it by ear as we go along here." The court stated its assumption that the State would know by the time of trial whether it was going to use Jacques as a witness and that the extent of Jacques' testimony could be addressed further at that time if necessary.
A jury trial was held on October 31 and November 1 and 2, 2011. In the analysis section below, we have set forth the details of a Batson challenge made by Jordan. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
In 2011, at the time of the incidents leading to the robbery charges against Jordan, Jessica was attending college at a university in South Dakota. She decided to spend her spring break in Omaha, Nebraska, visiting her brother Joseph Au Buchon. Jessica arrived in Omaha by Greyhound bus on the evening of March 5. Joseph and his girlfriend, Schiffbauer, picked Jessica up from the bus stop and returned with her to Joseph's residence. At that time, Schiffbauer stayed with Joseph at his house on a regular basis.
After they returned to Joseph's house, Jessica worked on a homework assignment using a laptop computer provided by her university, while Joseph and Schiffbauer watched television. Jessica's laptop included a GPS function that would allow the university to locate it if it had been lost or stolen.
Joseph's house was equipped with a nonrecording camera that allowed him to monitor individuals at the exterior door of the house from his living room. Later in the evening on March 5, 2011, Jessica observed two men at the door of the residence on the camera's monitor. Jessica saw that one of the men had dark skin and one had lighter skin. Joseph went to the door and let them in, greeting one of the men as "Felix." This man was identified at trial as Jacques. Jessica did not know either of the men, but Joseph seemed to know Jacques pretty well. Later in her trial testimony, Jessica made an incourt identification of Jordan as the person who was with Jacques on March 5. Jessica did not recall Jordan ever identifying himself or telling anyone his name on March 5. In describing Jordan's appearance that evening, Jessica testified that he was an African-American with short hair, wearing dark clothing including a black, hooded sweatshirt (hoodie).
After Joseph let the two men into the house, Jessica continued with her homework while the others visited, smoked marijuana, and played video games. Jessica testified that she was able to get a good look at the visitors' faces and that the two men appeared to be friends.
After about an hour, Jacques and Jordan asked Joseph for a ride home and Joseph agreed. The following day, March 6, 2011, at about 3 p.m., two individuals came by the house and Schiffbauer let them in the door. Joseph was still asleep in the bedroom. Jessica recognized the individuals as the two men who visited the night before. Jessica observed that Jordan was wearing a black hoodie again, with the hood down, and black pants. There was nothing obstructing her view of his face. Jessica and Schiffbauer asked the individual with Jacques what his name was, and Jordan identified himself as Monk. Schiffbauer, Jacques, and Jordan smoked marijuana, but Jessica did not. Jessica was using her laptop to work on another assignment for school.
After the men had been there about 30 or 40 minutes, Jordan asked to use Schiffbauer's cellular telephone. Jordan made a call, and then Jordan and Jacques left the house. Jacques and Jordan returned after about 5 minutes and played video games for a short time.
At some point, Jordan got up from where he was sitting, walked over to Schiffbauer, and picked up a laptop from an end table that was next to where she was sitting. Jordan then grabbed Jessica's laptop out of her lap, and when she tried to grab it back, she saw a gun in his hand. Jordan pointed the gun at Jessica and told her to "sit down and shut up bitch." Jessica recalled that the gun was a silver revolver with a wooden handle.
Jordan handed the laptops to Jacques, who stated, "[N]o, man, these are my people." Jordan put the gun next to Jacques' head and said, "[C]ome on man." Jordan then took four cellular telephones and some money off of the coffee table. One of the cellular telephones belonged to Jessica; the others belonged to Joseph and Schiffbauer. Jessica observed Jordan take some other items from the coffee table, but she did not recall what they were. Jordan placed some of the items from the coffee table in his pockets and some in Jacques' hands. Next, Jordan went to the entertainment system and took a gaming system. He also took the security camera receiver. Jordan kept the gaming system in his arms and kept the camera receiver, which was very small, in his hand or his pocket. Jordan grabbed some items off the top of some speakers in the room, but Jessica did not see what those items were. Jordan gave some of those items to Jacques. Jordan then told Jacques to come with him, and they began walking toward the door.
Jessica and Schiffbauer began to leave the living room area, and Schiffbauer grabbed her purse to take it with her. When Jordan saw the purse, he demanded it from Schiffbauer, but she told him no and kept walking. Jessica did not see Jordan and Jacques leave, but she heard the outside doors closing. Jessica and Schiffbauer then woke Joseph up, and Schiffbauer called the police.
Schiffbauer's recollection of events on the evening of March 5, 2011, was quite similar to Jessica's. When Jacques and Jordan arrived, Schiffbauer recognized Jacques because she had known him for a number of years. She did not recognize Jordan and testified that this was the first time she had seen him. Schiffbauer described him as being about 5 feet 10 inches tall, with short hair, a medium build, long sideburns, and a medium complexion, and wearing a black hoodie and black pants. He and Jacques appeared to be friendly with one another. Schiffbauer was able to get a good look at him while he was in the house that evening. Schiffbauer testified that Jordan did not introduce himself by name that night.
Schiffbauer's testimony concerning the events of March 6, 2011, was also consistent with Jessica's. According to Schiffbauer, Jacques and Jordan again arrived at the house. At that time, Jordan introduced himself as Monk. Schiffbauer testified that she had no difficulty seeing the faces of the individuals in the living room. After Jordan used Schiffbauer's cellular telephone, he and Jacques went outside. Schiffbauer looked out the window and observed them standing by an older-model green four-door car and talking to some individuals in the car. Schiffbauer's descriptions of the robbery that occurred after Jacques and Jordan returned to the house and of Jordan's gun were consistent with Jessica's. Schiffbauer made an incourt identification of Jordan as the individual who robbed her and Jessica on March 6 and stated that she was 100-percent certain of her identification.
Joseph's testimony about March 5, 2011, was consistent with Jessica's and Schiffbauer's, although Joseph recalled that the identification of Jordan as Monk, whom Joseph did not know, occurred on March 5. Joseph testified that there was sufficient lighting in the house that evening for him to get a good look at the person identified as Monk. The next day, Joseph was asleep when Schiffbauer and Jessica came into his room to tell him about the robbery. Joseph tried to find Jacques, both by visiting places where he knew Jacques spent time and by tracking his stolen cellular telephone via its GPS function, but was unsuccessful in locating him. Although Joseph did not identify Jordan as the man introduced to him as Monk from a photographic lineup shown to him by police prior to trial, he did make an incourt identification of Jordan as being that individual. Joseph testified that he was not very good with faces sometimes, but the individual introduced as Monk had a distinct nose, and that at the time of trial, he was sure that Jordan was that individual because of his nose.
The State presented testimony from police officers who investigated the robbery, including testimony about the photographic lineups shown to Jessica, Joseph, and Schiffbauer during the course of the investigation. Both Schiffbauer and Jessica selected the photograph of Jordan from the array as the individual who had robbed them.
The State also called Jacques as a witness, and we have set forth details concerning his testimony and Jordan's objections in the analysis section below.
Jordan offered an alibi defense through the testimony of his uncle, who testified that Jordan was inside his residence all day on March 6, 2011. Jordan's mother also testified he was at home all day.
Jordan testified that he and Jacques did go to Joseph's house on the evening of March 5, 2011. Jordan stated that he introduced himself that evening as Kevin, not Monk. Jordan stated that Joseph gave Jacques and him a ride home that evening. Jordan denied going to Joseph's house the following day.
The jury found Jordan guilty of both counts of robbery. The district court accepted the jury's verdict and ordered a presentence investigation. Following a sentencing hearing, the court sentenced Jordan to concurrent terms of imprisonment for 8 to 10 years. Jordan subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Jordan asserts, renumbered, that the district court erred in (1) overruling his motion to suppress, (2) ruling that the State provided a race-neutral explanation for striking the only African-American member of the jury pool, (3) permitting the State to call Jacques as a witness solely to impeach his credibility before the jury, (4) finding sufficient evidence to convict Jordan of the crimes charged, and (5) imposing excessive sentences.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
For challenges under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), an appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). And it reviews for clear error a trial court's factual determinations whether an attorney's race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was purposefully discriminatory. Id.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). 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. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
ANALYSIS
Motion to Suppress.
Jordan asserts that the district court erred in overruling his motion to suppress.
At the suppression hearing, Det. Ryan Hinsley of the Omaha Police Department stated he investigated the robbery that occurred on March 6, 2011. The victims advised Hinsley that they were robbed at gunpoint by two men, one of whom they knew, Jacques, and another man only known to them as Monk.
Hinsley conducted a photographic lineup approximately 5 days after the robbery with each of the three witnesses: Schiffbauer, Jessica, and Joseph. Hinsley read the instructions included with the photographic arrays to each witness, which instructions stated that the group of photographs might or might not contain the picture of the person that committed the crime and that the photographs might not reflect the true complexion of the person. Each witness viewed the photographic lineup separately. The photographs in the display are of males that have similar characteristics of age, skin, complexion, and hair color. Both Schiffbauer and Jessica selected the photograph of Jordan from the lineup. However, Joseph did not select Jordan from the lineup. On cross-examination, Hinsley stated that the photograph of Jordan shows him wearing a black hoodie which is what Jessica had previously described to the police on the day of the robbery and that Jordan was the only individual in the lineup wearing a hoodie. We note, however, that all of the individuals in the photographic lineup, except one, are wearing similar black garments and that the black garment worn by Jordan in the array is not significantly different from the garments worn by those other individuals. The sixth individual appears to be wearing a blue, black, and white plaid shirt.
Schiffbauer testified at the suppression hearing that an individual, who said his name was Monk, came into her home, used the computer, pulled a gun, and stole items from her living room. Schiffbauer stated that this individual was in her residence for 1 to 1½ hours prior to pulling out a gun and taking the laptop computers and the cellular telephones. She had met him the day before the robbery, when he and Jacques came by to "hang out." Schiffbauer had known Jacques for 4 or 5 years. Schiffbauer stated that the individual she picked out from the photographic array was the person responsible for the crime and that no one suggested whom to identify from out of the array.
Jessica stated that she met the person known as Monk the day before the robbery at her brother's residence. Jessica stated she was in the same room with this individual for about 30 minutes that day and at least 30 minutes the day of the robbery. She testified that she selected the photograph of Jordan from the lineup because it was "the man with the gun."
In overruling Jordan's motion to suppress the pretrial identification of him, the court stated that the photographic lineup was not improperly suggestive or prejudicial. The court stated further:
The Court has reviewed the lineup and listened to the testimony. It looks like that possibly witnesses -- or photographs number five and six, those gentlemen also have a hoodie on. None of the two witnesses said that they identified the particular -- the person they picked because of this hoodie. They said it was because of his facial features.We note that at trial, Jordan renewed his pretrial objection regarding the lineup.
Jordan argues that 5 days between the robbery and identification is too lengthy a period and that the photographic array was unduly suggestive because he was the only one wearing a black hoodie. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures. Id. The factors to be considered in determining whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness, and the length of time between the crime and the identification. Id.
The evidence shows that Schiffbauer and Jessica spent considerable time with Jordan both the day before and the day of the robbery. Both women were able to witness Jordan during the robbery and identified him as the one with the gun. Both women were certain of their respective identifications of Jordan as the man who robbed them. As noted by the district court, two individuals in the photographic array in addition to Jordan appear to be wearing hoodies and the only individual, not Jordan, who really stands out from the lineup is the man wearing the plaid shirt. All of the individuals pictured have similar hairstyles, complexions, and facial features. The identification took place just 5 days after the robbery, which is not unduly long. See, e.g., State v. Sanders, 235 Neb. 183, 455 N.W.2d 108 (1990) (length of time between events on July 24 and 25 and lineup on September 30 was not so long as to lead to mistaken identification); State v. Richard, 228 Neb. 872, 424 N.W.2d 859 (1988) (involving 2 months between time of crime and confrontation); State v. Packett, 207 Neb. 202, 297 N.W.2d 762 (1980) (determining that lineup 2½ months after sexual assault was not unnecessarily suggestive or conducive to mistaken identification). Although Jordan attempts to question the witnesses' degree of attention during the events in question, there is ample evidence in the record to show that both witnesses had a good opportunity to view Jordan and a witness' degree of attention is but one factor to be considered. The totality of the circumstances in this case shows that the identification procedures were not unduly suggestive and were not conducive to a substantial likelihood of irreparable mistaken identification. The district court did not err in overruling Jordan's motion to suppress. Batson Challenge.
Jordan asserts that the district court erred in ruling that the State provided a race-neutral explanation for striking the only African-American member of the jury pool.
The evaluation of whether a party has used peremptory challenges in a racially discriminatory manner is a three-step process. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor has exercised peremptory challenges because of race. Id. Second, if the requisite showing has been made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. Third, the trial court must then determine whether the defendant has carried his or her burden of proving purposeful discrimination. Id. The third step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id.
The first juror struck by the State from the jury pool following voir dire was African-American. Jordan is also African-American. Jordan raised a challenge to the State's peremptory strike of this juror under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The district court, without specifically finding that Jordan had made a prima facie case, asked the State to tender a race-neutral explanation for the strike, and the State complied, responding that it struck the juror because she was the only prospective juror who claimed to have been falsely charged with a crime and because her spouse was then currently incarcerated for a crime that occurred and was prosecuted in the State of Nebraska. Jordan had no response to the reasons provided by the State. The court overruled the challenge, stating that based upon the State's reasons, it had a good reason to strike the juror. When prompted by Jordan's attorney, the court noted on the record that the juror was the only African-American, but it observed that the jury pool did include other minorities. After noting Jordan's concern, the court again stated that the State had set forth a reasonable basis for the strike.
Although the prosecutor must present a comprehensible reason for a peremptory challenge, the second step of the analysis under Batson v. Kentucky, supra, does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. State v. Thorpe, supra.
In this case, the State offered two race-neutral reasons for striking the juror in question. Jordan did not respond to the proffered reasons and failed to meet his ultimate burden of persuasion regarding racial motivation. The district court's determination that those reasons were persuasive is not clearly erroneous. Jordan's assignment of error is without merit.
Jacques' Testimony.
Jordan asserts that the district court erred in permitting the State to call Jacques as a witness solely to impeach his credibility before the jury. Jordan filed a motion in limine seeking to exclude Jacques' testimony at trial. At the hearing on his motion, Jordan argued that Jacques was a witness adverse to the State and that his statements to the police and in his subsequent deposition were inconsistent. Jordan asserted that the sole purpose of calling Jacques would be to impeach him on his former statements to the police. After discussing Jacques' possible trial testimony with the parties, the district court sustained the motion in limine, stating the State could not call Jacques for the sole purpose of impeaching him but that the issue would be revisited at trial if necessary.
At trial, after Joseph testified and the jury went on break, the prosecutor informed the district court that Jacques had been subpoenaed as a witness by both parties and that he understood Jacques was going to invoke his Fifth Amendment privilege if called to testify. Jacques' attorney was present and confirmed that this was his client's intention. After discussing with his attorney the repercussions and consequences of testifying, Jacques eventually changed his mind and stated that he intended to testify and answer all questions from both parties.
Jacques was called by the State and testified that he knew Jordan because he had "seen him around a few times here and there." Jacques identified Jordan in court as the individual he had "seen around here and there." According to Jacques, he and Jordan were not friends or associates. He denied ever hanging out with Jordan or being in a car with him in 2011.
Jacques admitted that he had taken drugs such as marijuana and ecstasy and had consumed liquor on March 5, 201l. He claimed that he could not recall the events of that evening because the drugs gave him a bad memory. According to Jacques, on March 5, he rented a vehicle from an unknown person and just rode around until he returned to his mother's house where he remained the rest of the night.
After additional questioning by the State, Jacques "just remembered" that he did go to Joseph's house on March 5, 2011, played some games, and then walked back home. According to Jacques, the only individuals at Joseph's house that evening were him, Joseph, Schiffbauer, and Jessica. He claimed that he walked to Joseph's house alone that evening and that no one entered the house with him. Jacques denied Jordan's presence at Joseph's house and claimed that he did not smoke marijuana with Jordan while at Joseph's house. No prior inconsistent statements by Jacques were introduced or used to impeach him at this point in his trial testimony regarding the events of March 5.
With respect to March 6, 2011, Jacques testified that he started walking to Joseph's house by himself but that he met a stranger who ended up accompanying him. According to Jacques, he wanted to buy a cigarette from this individual, who needed access to a telephone, and Jacques offered to get the stranger access to Joseph's telephone in exchange for a cigarette. According to Jacques, the person that went with him to Joseph's house on March 6 was not Jordan. Jacques claimed that the stranger introduced himself to Jessica and Schiffbauer as Monk and that if anyone claimed that Jacques was the one who had introduced the stranger as Monk, that person would be lying.
Jacques testified that even though the armed robbery occurred in his presence on March 6, 2011, he did not call the police because whatever happened had nothing to do with him, because he knew Joseph would probably call, and because he did not want to be involved in "that kind of drama."
After the robbery, Jacques testified that he ran to a "corner store," made a purchase, and went to another individual's house. Jacques claimed that he went from there to a friend's baby shower, although he could not recall the location of the shower or the name of the friend.
Jacques testified that he was interviewed by the police and that "to the best of [his] ability to [his] knowledge," he thought that he told the police the same thing about the events in question that he told the jury. When asked if he told the police that he had met the individual who identified himself as Monk on a previous occasion, Jacques could not recall that but stated that he might have agreed with the police because they kept repeating themselves. Jacques stated that he was sure that Jordan was not at Joseph's house on March 5 or 6, 2011.
According to Neb. Rev. Stat. § 27-607 (Reissue 2008), "The credibility of a witness may be attacked by any party, including the party calling him." However, a party may not use a prior inconsistent statement of a witness under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
In State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003), the State's questions of a particular witness were intended to demonstrate that as a friend of the defendant, the witness was willing to be less than truthful. The relationship between the witness and the defendant could be viewed as close enough that the witness was willing to show bias in his testimony. The Nebraska Supreme Court found that the State's questioning, in attempting to demonstrate that bias, was not improper.
In this case, the State called Jacques to testify at trial not knowing what the substance of his testimony would be. The gist of Jacques' convoluted testimony was that Jordan was not present at Joseph's house on March 5 or 6, 2011, and that a complete stranger committed the robbery. The State asked Jacques questions only regarding his occasionally bizarre version of events, which was in clear contrast to the testimony of Joseph, Jessica, and Schiffbauer. The only possible impeachment of Jacques with a prior inconsistent statement occurred during the questioning regarding his statement to the police about having known Monk previously, to which Jacques essentially responded that he told the police what they wanted to hear. The record does not support a conclusion that the State used a prior inconsistent statement of Jacques under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which was not otherwise admissible. Jordan's assignment of error is without merit.
Sufficiency of Evidence.
Jordan asserts that the district court erred in finding sufficient evidence to convict Jordan of the crimes charged. The State charged Jordan with two counts of robbery in violation of § 28-324. "A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever." § 28-324(1).
The jury did not accept Jordan's alibi defense. Jordan essentially asks us to resolve conflicts in the evidence, pass on the credibility of witnesses, and reweigh the evidence, which are matters for the finder of fact. See State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). The State provided testimony at trial from Jessica and Schiffbauer that on March 6, 2011, Jordan used a gun and stole their laptops, cellular telephones, and money. The evidence, viewed and construed most favorably to the State, is sufficient to support the convictions. Jordan's assignment of error is without merit.
Excessive Sentences.
Finally, Jordan asserts that the district court erred in imposing excessive sentences. The court sentenced Jordan to concurrent terms of imprisonment for 8 to 10 years.
Robbery is a Class II felony, punishable by 1 to 50 years' imprisonment. See, Neb. Rev. Stat. § 28-105 (Reissue 2008); § 28-324(2). Jordan's sentences are within the statutory limits. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
Jordan argues that the court did not consider all of the relevant factors before imposing sentence. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. State v. Bauldwin, supra. In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id.
At the sentencing hearing, the district court found that Jordan was not a candidate for probation because of the violence involved in the crimes. The court observed that Jordan was fortunate that the State had declined to file a use of a deadly weapon to commit a felony charge. The court stated that it was considering the fact that Jordan had used a gun to steal the laptops. The court also stated that it had reviewed the presentence investigation report and thought considerably about the appropriate sentence for someone "sticking a gun in someone's face" and demanding their property.
Jordan was 21 years old at the time of sentencing. He has an 11th grade education and a limited employment history. His prior criminal record includes convictions for disorderly conduct, obstructing the administration of the law, and possession of marijuana, less than 1 ounce. Jordan was given the level of service/case management inventory and scored in the very high risk range for education/employment, companions, and procriminal attitude. He also scored in the high risk area for criminal history, family/marital, leisure/recreation, alcohol/drug problem, and antisocial pattern. Overall, he scored a 36 on the inventory, which places him in the very high risk category (a score of 30 or above is considered very high risk). Jordan completed a substance abuse questionnaire and scored in the maximum problem risk section for drugs, violence, and antisocial behavior, and in the problem risk area for truthfulness.
The record supports the sentences imposed, and we find no abuse of discretion.
CONCLUSION
The district court did not err in overruling Jordan's motion to suppress the photographic lineup, in finding that the State provided a race-neutral explanation for striking the only African-American member of the jury pool, or in allowing the State to call Jacques as a witness. We further find that there was sufficient evidence to support Jordan's convictions and that the sentences imposed were not excessive.
AFFIRMED.