Opinion
No. A-11-999
10-30-2012
STATE OF NEBRASKA, APPELLEE, v. DANIEL D. DAK, APPELLANT.
Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt for appellant. Jon Bruning, Attorney General, and Carrie A. Thober 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 Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Following a jury trial in the district court for Lancaster County, Daniel D. Dak was found guilty and sentenced to consecutive terms of 3 to 6 years' imprisonment for attempted robbery and 5 to 10 years' imprisonment for robbery and for each of two counts of use of a firearm to commit a felony. On appeal, Dak asserts the district court erred in admitting a handwritten letter without proper authentication, in finding him guilty beyond a reasonable doubt, and in imposing excessive sentences. For the reasons that follow, we affirm.
BACKGROUND
On December 23, 2010, police officers in Lincoln, Nebraska, received reports of two robberies perpetrated by "extremely dark-skinned black males" who were "possibly Sudanese." The first report took place at approximately 1:15 a.m. near 12th and D Streets. Craig Pittz was at his apartment when a dark-skinned "African" man, less than 20 years old, knocked on his door and asked "to buy a sack of weed," which Pittz sold him for $5.
Approximately 5 minutes later, the same man returned along with another dark-skinned "African" man. After Pittz opened the door, the second man pointed a sawed-off shotgun in Pittz' face and demanded that Pittz give him all his money. Pittz put his hands in the air and started backing away from the door, at which time his 120-pound Rottweiler charged toward the door, and the men ran away. Pittz immediately called the police.
The second reported robbery occurred at approximately 1:50 a.m. near 12th and New Hampshire Streets. Tyler Johnson and Brandon Shipler left their house around 1:30 a.m. to go to a fast-food restaurant. They were sitting in the driveway in Johnson's car setting up an iPod when three dark-skinned men opened the driver's-side and passenger-side doors, pointed a sawed-off shotgun in Shipler's face, and said, "'Give us everything you got.'" The man on the driver's side took Johnson's iPod out of his hand, as well as his cellular telephone, a pack of cigarettes, and a lighter from his pockets. The two men on the passenger side took Shipler's cellular telephone, identification, bank card, and Blockbuster card. Johnson and Shipler went back inside the house and called the police.
Shortly after 3 a.m., Officer Jeremy Wilhelm was patrolling near 19th and Y Streets when he observed three or four "extremely dark-skinned black males" driving in a tan minivan that had been reported stolen a few days prior. Officers suspected that they might also be the individuals responsible for the robberies that were reported earlier that morning. Wilhelm continued to follow the van while additional units were called to the area. The van drove off at a high rate of speed, and Wilhelm observed that the van struck something in the roadway and that a trail of fluid was leaking from its undercarriage.
Within a few minutes, a police sergeant found the van abandoned near 40th and Orchard Streets, less than 15 blocks from where it was last seen. The van was disabled and leaking fluid from the front end. Officers quickly established a perimeter around the area and deployed canines to track the suspects on foot. Four individuals were soon observed running along the bike trail near 46th and Y Streets. Three out of the four individuals were apprehended by law enforcement shortly thereafter. They were identified as Dak, Bukjiok Dubuony, and Shat Bagut.
Bagut admitted to law enforcement his involvement in the robberies and gave specific details regarding the involvement of Dak, Dubuony, and a fourth individual named "Ruachkuoth." According to Bagut, the four of them were "hanging out," drinking, and smoking marijuana at a party on December 22, 2010. At some point, they left in a tan van to buy more marijuana. Dubuony was driving, Dak was sitting in the front passenger seat, and Bagut and Ruachkuoth were sitting in the back seat. Ruachkuoth and Dak went inside the apartment building to buy the marijuana. When they returned to the van, they said the drug dealer had a lot of cash and suggested robbing him.
Ruachkuoth and Dak returned to the second floor apartment to perform the robbery, Dubuony stayed in the van, and Bagut positioned himself near the main entrance as a lookout. Although Bagut was at the bottom of the stairs, he heard Ruachkuoth and Dak knock on the apartment door and demand money from the drug dealer. Bagut then heard a dog barking, a door slam, and saw Ruachkuoth and Dak run quickly down the stairs and out of the building.
The four men then went to a discount store on North 27th Street to get some food and to a nearby grocery store, where they stole two bottles of liquor. When they got back to the van, Dak and Dubuony switched seats so that Dak was driving. They were disappointed about not getting any money during the attempted robbery at the drug dealer's apartment, so they decided to try another robbery. As they were driving around, they saw two individuals sitting in a car in a residential neighborhood and decided to rob them. Dak stopped the van to let the other three men out, and someone told Bagut to grab the sawed-off shotgun that was sitting on the floor of the vehicle, which he did.
Bagut, Dubuony, and Ruachkuoth approached the car, opened the driver's-side and passenger-side doors, and told the occupants to give them everything in their pockets, which they did. Bagut, Dubuony, and Ruachkuoth ran back to the van with the stolen items, and Dak drove off. According to Bagut, the proceeds of the robbery included a driver's license, a couple of credit cards, a Blockbuster card, two cellular telephones, and an iPod. Several of these items were later found in Bagut's pockets when he was apprehended by the police.
The four men continued driving around until they noticed a police cruiser following them in the area of 27th and Dudley Streets. When the cruiser continued to follow them, Dak quickly accelerated until they lost sight of it. Shortly thereafter, the van's steering wheel locked up and the van would no longer drive. They "wiped down" the inside of the van and ditched it in a neighborhood. Bagut grabbed the alcohol bottles from the van and threw them into a backyard. The bottles were later recovered by police.
When the van was later processed, officers located an empty pack of cigarettes, which were the same kind that had been stolen from Johnson during the second robbery. Fingerprints lifted from the van and a soda bottle found inside the van were matched to Dak. Bagut told the officers that the shotgun was dumped while the four men were running along the bike trail, and Bagut directed the officers to the location of the shotgun, where it was recovered.
A few weeks after the robbery, Pittz received a letter purportedly written by Dak, which was contained in an envelope sent from the Lancaster County jail with Dak's name in the upper left-hand corner of the envelope. The envelope was addressed to Pittz at the address where the attempted robbery in question occurred. In the letter, Dak acknowledged his involvement in the attempted robbery and asked for Pittz' forgiveness. The letter also identified Dak as an 18-year-old student attending a community college in Lincoln. Dak's student identification from the community college was previously received in evidence.
Dak was charged in the district Court for Lancaster County with (1) theft by receiving stolen property valued over $1,500, to wit: the stolen van; (2) attempted robbery; (3) use of a firearm to commit attempted robbery; (4) robbery; and (5) use of a firearm to commit robbery. Dak pled not guilty, and a jury trial was held September 12 through 15, 2011. The evidence at trial is as summarized above.
After the State rested, the defense moved for a directed verdict on all five counts. The district court granted the motion with respect to count I, finding that although the State had adduced evidence that the value of the stolen van was at least $500, it failed to introduce any evidence that it was valued at more than $1,500. Thus, count I was reduced from a Class III felony to a Class IV felony, and the jury was instructed accordingly.
The jury returned guilty verdicts on all charges except count I. Dak was sentenced to 3 to 6 years' imprisonment on count II and 5 to 10 years' imprisonment each on counts III, IV, and V. All of the sentences were ordered to run consecutive to one another. Dak timely appeals.
ASSIGNMENTS OF ERROR
Dak alleges (1) that the district court erred in admitting a letter allegedly written by Dak to one of the victims, (2) that the evidence was insufficient to sustain his convictions, and (3) that the district court abused its discretion by imposing excessive sentences.
STANDARD OF REVIEW
Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated, and an appellate court reviews a trial court's ruling on authentication for an abuse of discretion. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
In reviewing 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. 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. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
ANALYSIS
Admission of Letter.
At trial, the court received as exhibits, over Dak's foundational objection, the envelope and enclosed letter purportedly written by Dak to Pittz. In this appeal, Dak challenges the admission of the letter received by Pittz. Dak argues that there was insufficient evidence to authenticate the letter as being written by him.
Neb. Rev. Stat. § 27-901 (Reissue 2008) governs the requirements for authentication or identification of evidence. Section 27-901 does not impose a high hurdle for authentication or identification. State v. Pullens, supra. The proponent is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. Id. Instead, if the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, then the proponent has satisfied the requirement of § 27-901.
Dak argues that the letter was not properly authenticated under § 27-901(2)(b), which allows for authentication by nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation. However, the State did not attempt to authenticate Dak's letter under this subsection as Pittz did not testify to his familiarity with Dak's handwriting. Rather, the State urged the court to receive the letter under § 27-901(2)(d), which allows for authentication by "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." In receiving the exhibits, the court noted that foundation can be laid in a number of ways, including circumstantial evidence and all of the surrounding facts and circumstances. In this regard, the court relied upon the surrounding circumstances, including the reference in the letter to Dak being a student at the community college in light of Dak's community college student identification card previously received in evidence, in finding that sufficient foundation had been laid.
The district court also noted that a different statute allows the jury itself to make a determination on signatures and handwriting. It appears that the court was referring to § 27-901(2)(c), which provides that authentication may be done by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." See, also, Neb. Rev. Stat. § 25-1220 (Reissue 2008) (evidence respecting handwriting may be given by comparisons made, by experts, or by jury, with writing of same person which is proved to be genuine). The district court noted that the jury could compare the signature on Dak's driver's license (which had been admitted without objection) and the signature in the letter to determine their similarity.
We conclude that the State met its burden under § 27-901, and we find no abuse of discretion by the district court in its receipt of the envelope and letter sent to Pittz. This assignment of error is without merit.
Sufficiency of Evidence.
Dak asserts that there was insufficient evidence to find that he committed the offenses in question beyond a reasonable doubt. Dak points to the fact that none of the alleged victims identified Dak, described what he did, or described his specific role in the robberies. Dak also argues that Bagut was not a credible witness and that without the letter allegedly received from Dak, there is only the circumstantial evidence that Dak was located and arrested near the abandoned van.
The relevant question for an appellate court reviewing a sufficiency of the evidence claim 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. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). 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. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011). We find the evidence to be sufficient to support Dak's conviction.
A person commits the crime of 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. Neb. Rev. Stat. § 28-324(1) (Reissue 2008). A person shall be guilty of an attempt to commit a crime if he intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his commission of the crime. Neb. Rev. Stat. § 28-201(1)(b) (Cum. Supp. 2010). A person commits the crime of use of a deadly weapon to commit a felony if he uses a firearm to commit a felony. Neb. Rev. Stat. § 28-1205(1)(a) (Cum. Supp. 2010). Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm during, immediately prior to, or immediately after the commission of a felony. § 28-1205(5)(b).
The jury was instructed that it could convict Dak either as a principal or as an aider and abettor. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender. Neb. Rev. Stat. § 28-206 (Reissue 2008). Aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed. State v. McGee, supra. No particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. Id. Mere encouragement or assistance is sufficient. Id.
The evidence in this case clearly implicates Dak in both events occurring on the morning in question. We properly consider the letter from Dak to Pittz concerning the attempted robbery of Pittz, as well as the circumstantial evidence for all of the crimes showing that Dak was chased and apprehended near the other perpetrators and that his fingerprints were found on the stolen van and a bottle in the van. Further, Bagut provided detailed testimony concerning the circumstances surrounding the crimes and Dak's involvement in them. It was the responsibility of the jury to assess Bagut's credibility, and it is not our role to pass on his credibility or to reweigh the evidence. Under the circumstances of this case, viewed in the light most favorable to the prosecution, a rational jury could have found the essential elements of the crimes for which Dak was convicted were met beyond a reasonable doubt either as a principal or as an aider and abettor.
Sentences.
Dak claims that his sentences were excessive. Attempted robbery is a Class III felony punishable by 1 to 20 years' imprisonment, a $25,000 fine, or both. § 28-201(4)(b); Neb. Rev. Stat. § 28-105(1) (Reissue 2008). Robbery is a Class II felony punishable by 1 to 50 years' imprisonment. § 28-324(2); § 28-105(1). Use of a firearm to commit a felony is a Class IC felony punishable by a mandatory minimum of 5 years' imprisonment and a maximum of 50 years' imprisonment. § 28-1205(1)(c); § 28-105(1). In addition, the use of a firearm sentence is required to run consecutive to the underlying felony sentence. § 28-1205(3). The consecutive sentences of imprisonment imposed by the court of 3 to 6 years for the attempted robbery conviction and 5 to 10 years for each of the remaining convictions were well within the statutory limits. Thus, our inquiry focuses on whether the sentences were an abuse of judicial discretion. See State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
When imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education and experience, social and cultural background, past criminal record, and motivation for the offense, as well as the nature of the offense and the violence involved in the commission of the crime. Id. 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.
The presentence investigation report shows that Dak was 19 years old at the time of its preparation and that he had obtained his diploma through the GED program while at a youth rehabilitation treatment center. Dak had several juvenile court convictions, including discharge of a firearm, burglary, theft by receiving stolen property, second degree assault, assault by a confined person, unauthorized use of a propelled vehicle, carrying a concealed weapon, and theft by unlawful taking. As an adult, Dak was convicted of entering a motor vehicle without permission for which he was sentenced to 180 days in jail, as well as some minor traffic violations. Dak also had an active warrant in Douglas County for unlawful occupancy, minor in possession, and open container.
Dak reported that he had been attending the community college for two quarters. Dak denied using alcohol or marijuana on a regular basis. The probation officer conducted a "Level of Service/Case Management Inventory" interview, which assessed him at a high risk to reoffend with a total score of 23.
In determining the sentences, the court stated that it considered Dak's statement to the court, comments of Dak's attorney, and all of the information in the presentence investigation report. The court also considered the serious nature of the crimes and Dak's criminal history. We find no abuse of discretion by the court in sentencing Dak.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.