State v. Sutton


No. A-09-575.


2010 Neb. App. LEXIS 15

January 26, 2010, Filed



Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth Foster for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.







MOORE, Judge.


Danny Sutton appeals from his conviction and sentence in the district court for Lancaster County for third degree assault, by mutual consent, a Class II misdemeanor. For the reasons set forth herein, we affirm.


This case arises from a fight between Sutton and Turner McDaniel. The State filed an information in the district court on September 18, 2008, charging Sutton with second degree assault, which at the time was a Class IIIA felony. See Neb. Rev. Stat. § 28-309 (Reissue 2008). The State alleged that on August 5, 2007, Sutton intentionally and knowingly caused bodily injury to McDaniel with a dangerous instrument.

A jury trial was held April 14 through 16, 2009. In his defense, Sutton advanced a theory of self-defense, asserting that McDaniel was the first aggressor.

The evidence shows that, on the evening in question, Sutton, McDaniel, and Whitney Hale were at a bar. While Sutton and Hale had known one another for several months, neither of them was previously acquainted with McDaniel. Both Hale and McDaniel consumed alcohol over the course of a couple of hours while at the bar. All three parties engaged in conversation, and ultimately McDaniel and Hale left the bar together; Sutton left on his own at some other point. McDaniel and Hale went to a party at the residence where the assault occurred. McDaniel consumed more beer at the party, as did Hale, who admitted to being “pretty intoxicated.” There was evidence that Sutton was also drinking beer while at the party. At some point during the party, an incident occurred on the steps leading into the basement where another individual fell, or was pushed, down the steps while Sutton was on the steps. Sutton was told to leave the party, and he left the residence with Jonathan Thompson. As Sutton and Thompson were in the process of leaving, several individuals, including McDaniel and Jeremy Johnston, came out of the house. Hale followed a few minutes later.

The evidence is in dispute as to what happened immediately prior to the assault. According to Thompson, who had been drinking for several hours at the party before Sutton arrived, Thompson and Sutton left the party after the incident on the stairs. While they were preparing to leave in Sutton’s vehicle, three individuals came running out of the house toward them, and Thompson felt that a fight was going to occur based upon the manner in which the trio approached. Thompson yelled at the three individuals to stop; two of them did, but McDaniel continued coming toward Thompson and Sutton. According to Thompson, McDaniel’s intentions “seemed pretty clear” because of his aggressive demeanor and because “he was coming quickly and he wasn’t responding.”

According to Thompson, Sutton got out of the vehicle, and when McDaniel reached Thompson and Sutton, Thompson moved out of the way, and Sutton hit McDaniel once. Thompson testified that after this punch, McDaniel shook hands with Sutton and said everything was fine, but then McDaniel punched Sutton. A “wrestling match” between McDaniel and Sutton commenced on the ground, with both McDaniel and Sutton punching each other; however, Sutton eventually “got the upper hand” and punched McDaniel several times in the face, and McDaniel became unresponsive. Hale reached the melee when Sutton was on top of McDaniel. Hale testified that she saw something shiny in Sutton’s hand, which she thought was a beer bottle. Hale and Thompson broke up the fight and told Sutton to leave because they were going to call the police. Sutton left.

Officer James Quandt was one of several law enforcement personnel who responded to the assault. Upon his arrival at the scene, Quandt observed a number of people standing outside, McDaniel lying on the ground, Hale straddling McDaniel, and Johnston, who was not wearing a shirt, holding a bloody rag to McDaniel’s head. McDaniel gave Quandt his name, but McDaniel was dazed and slow and did not know what had happened to him.

McDaniel was taken to the emergency room where he was treated for several lacerations on his face and head as well as a large “goose egg” on the back of his head. Radiological studies revealed bleeding in McDaniel’s skull. McDaniel was diagnosed with a traumatic subarachnoid hemorrhage as well as either a subdural or epidural hematoma. According to the emergency room physician, McDaniel’s injuries were most consistent with being struck by an object as opposed to being hit with just fists. The physician testified that McDaniel’s blood alcohol level was “153.6.”

McDaniel testified that when he and another person went outside to “escort” Sutton from the party, McDaniel told Sutton, “[T]hat wasn’t cool, man,” and then turned to go back inside. McDaniel then heard “a splat” and found himself on the grass. McDaniel did not see who or what struck him. McDaniel did not recall shaking Sutton’s hand or hitting Sutton. McDaniel then recalled waking up as he was being transported to the hospital where he stayed for 5 days. As a result of the injuries he sustained in the fight, McDaniel has permanent hearing loss in one ear and had difficulty walking for a time. He still has headaches and gets dizzy.

After Thompson’s testimony, Sutton’s attorney asked the district court for permission to recall McDaniel:

[W]ith the sole purpose of asking him about prior incidents where he’s been involved in assault-type behavior. I believe that the foundation has been laid with regards to self-defense and the fact that . . . Thompson, who just testified, indicated that three men came out of the house; that . . . McDaniel proceeded towards them in a quick pace, in an aggressive manner; that he thought something was going to happen; he was intimidated; that . . . McDaniel continued to come in very close to him and . . . Sutton. I believe at the end . . . Thompson said he was scared and also said he knew something was going to happen, whether it was a fight with all of them or something based on that aggressive manner.
I would submit to the Court that I believe that that will be enough at least for self-defense to be given for the jury to decide thus bringing an issue who was the first AGGRESSOR and open the door at that point to question . . . McDaniel regarding his prior assaultive behavior.


The State opposed Sutton’s motion, and the district court denied Sutton’s request. Specifically, the court stated:

Well, it seems to me what we have is an interrelationship between Rule 404 and 405 and what we’re under is . . . Rule 404(1)(b), trying to show the evidence pertinent to a trait of character of the victim but actually how that’s done is through Rule 405 and I don’t think you do that through cross-examination or evidence of other crimes. I think basically it’s done by the testimony of witnesses who have witnessed that.
So I guess right now I’m inclined to not allow you to elicit such alleged evidence from  questioning . . . McDaniel.
. . . In other words, it becomes a real — it’s a real problem and sometimes you end up with, I suppose, a trial within a trial but I think most of the cases have involved people who have testified to instances that have occurred pretty much at the time of the alleged offense involving the actions of the so-called victim so that’s my inclination right now.


Sutton also sought the admission of statements from Johnston and a determination from the district court as to Johnston’s unavailability. Sutton’s attorney explained that he had attempted to subpoena Johnston as a witness but that the address available for Johnston was “not a good address.” The court and Sutton discussed what subsection of Neb. Rev. Stat. § 27-804(2) (Reissue 2008) Johnston’s statement would fall under, in the event the court determined that Johnston was unavailable and determined that § 27-804(2)(c) (statement tending to subject the declarant to criminal liability) would be the applicable subsection.

Sutton sought to have exhibits 11 and 12 admitted into evidence. Exhibit 11, a document entitled “LINCOLN POLICE ADDITIONAL CASE INFORMATION,” is a police report in which Quandt reported, among other things, Johnston’s version of events on the night in question. Quandt stated in exhibit 11 that Johnston told him that he and McDaniel had been in the house when they saw a fight break out, and once that ended, he and McDaniel went outside after the person responsible, intending to get into a fight. Quandt also reported Johnston’s statement to him that this person attacked McDaniel with a set of brass knuckles and that Johnston stayed out of the fight because of the brass knuckles. Exhibit 12 is a copy of the third degree assault statute, Neb. Rev. Stat. § 28-310 (Reissue 2008). Sutton’s attorney explained to the court that he was offering the statute because it was one of the statutes under which Johnston could be charged based on his comments to police.

The State objected to exhibits 11 and 12. The State objected to exhibit 11 on the basis of hearsay in that it was Quandt’s report and not a verbatim response from Johnston to questions posed by law enforcement personnel. The State also proffered exhibit 13, which is a transcription of a taped interview between Johnston and another police officer, and suggested to the court that it be received in evidence in lieu of exhibit 11.

The court received exhibits 11 through 13, apparently simply for purposes of the record, and proceeded to contemplate how a statement from Johnston would come into evidence. The court determined that while the statement might implicate § 28-310(1)(b) (“[t]hreatens another in a menacing manner”), the statement did not fit within § 27-804(2)(c) (“statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability”). Accordingly, the court concluded that even if it were to find that Johnston was unavailable, his statement was not admissible under an exception to the hearsay rule.

Sutton’s attorney then sought a recess in order to try to contact a victim of one of McDaniel’s assaults. Apparently, this attempted contact did not yield results because after a recess, Sutton’s attorney made an offer of proof “with regards to calling . . . McDaniel for the purpose of asking him regarding his assaultive criminal past.” Sutton offered exhibits 14 through 17, copies of court records relating to various cases involving McDaniel. Sutton’s attorney stated that if he had been allowed to recall and question McDaniel “regarding his assaultive history,” he would have “specifically asked him with regards to each of these cases was he involved in an assaultive behavior on the specific date of each of those cases involving the specific person in each one of those cases.” Sutton’s attorney stated that he intended to use that testimony to show the essential element of who was the first aggressor in this case.

The State objected to Sutton’s offer of proof. The district court sustained the objection and received exhibits 14 through 17 for the record only.

The case was submitted to the jury, which found Sutton guilty of third degree assault. The district court found that the assault was a fight entered into by mutual consent and sentenced Sutton to 180 days in jail plus the costs of prosecution. Sutton subsequently perfected his appeal to this court.


Sutton asserts that the district court erred in (1) finding that character evidence was not admissible through examination of McDaniel, (2) ruling that Johnston’s statement was not admissible, and (3) imposing an excessive sentence. Sutton also asserts that the evidence was insufficient to sustain his conviction of third degree assault.


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. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009).

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. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009). Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection. Id. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Rev. Stat. §§ 27-403 and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed absent an abuse of discretion. State v. Epp, supra. The term “judicial abuse of discretion” means that 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. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).

A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Epp, supra.


Character Evidence.

Sutton asserts that the district court erred in finding that character evidence was not admissible through examination of McDaniel. Specifically, Sutton argues that evidence of McDaniel’s violent character was necessary to show that McDaniel was the first aggressor, an essential element of Sutton’s self-defense claim.

To successfully assert a claim of self-defense as justification for the use of force, the defendant must have a reasonable and good faith belief in the necessity of such force and the force used must be immediately necessary and must be justified under the circumstances. State v. Goynes, 278 Neb. 230, 768 N.W.2d 458 (2009). A determination of whether the victim was the first aggressor is an essential element of a self-defense claim. State v. Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).

Evidence of a victim’s violent character is probative of the victim’s violent propensities and is relevant to the proof of a self-defense claim. State v. Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995). The plain language of § 27-404 provides that a defendant may present evidence of a pertinent trait of a victim’s character to show that the victim acted in conformity therewith on a particular occasion. State v. Lewchuk, supra. Neb. Rev. Stat. § 27-405(1) (Reissue 2008) provides that in situations where testimony is allowed about a person’s character trait, that trait may be shown by reputation and opinion testimony. State v. Lewchuk, supra. Section 27-405(2) provides for proof of specific instances of conduct regarding a person’s character or trait of character when the character or trait of character is an essential element of a charge, claim, or defense. State v. Lewchuk, supra.

The State argues, in part, that Sutton used an incorrect method to attempt to offer character evidence to show McDaniel’s propensity for assaultive behavior by offering court records of cases involving assaults by McDaniel. The State argues that the convictions at issue were misdemeanors and that questioning McDaniel about them was prohibited by Neb. Rev. Stat. § 27-609 (Reissue 2008) as the crimes were not punishable by death or imprisonment in excess of 1 year and were not crimes involving dishonesty or false statements.

Under § 27-405(2), proof of McDaniel’s propensity for violence is relevant to whether he was the first aggressor, which is an essential element of Sutton’s self-defense claim, and as such, may be proved by evidence of specific instances of McDaniel’s conduct. However, we need not decide whether the trial court erred in excluding the evidence of McDaniel’s prior assaultive behavior as any error in excluding the evidence was harmless.

In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009). In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. Id. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. Id.

Because the evidence shows that Sutton’s use of force against McDaniel on the evening in question went beyond that immediately necessary and justified under the circumstances, any error in excluding the evidence of specific instances of McDaniel’s conduct was harmless. Even if McDaniel was the first aggressor and Sutton’s self-defense claim was initially meritorious, the evidence was overwhelming that Sutton continued to strike McDaniel numerous times after Sutton was on top of McDaniel, who was on the ground, to the point that McDaniel became unresponsive and, as a result, suffered serious injuries. At that point, Sutton’s actions went beyond self-defense in that he was using more force than was reasonable for the threat he faced. Accordingly, the circumstances which may have constituted self-defense were clearly terminated and the defense did not apply to Sutton’s continued striking of McDaniel thereafter. In sum, the guilty verdict in this case was surely unattributable to the exclusion of evidence concerning past assaultive behavior by McDaniel.

Absent Witness Statement.

Sutton asserts that the district court erred in ruling that Johnston’s statement was not admissible. Sutton argues that Johnston’s statement should have been admissible under an exception to the hearsay rule for unavailable witnesses who have made statements against their penal interests. Sutton argues that Johnston was unavailable as a witness and that Johnston’s statements about him and McDaniel following Sutton, intending to fight, fall under an exception to the hearsay rule because they tended to subject Johnston to criminal liability under § 28-310, the third degree assault statute.

Section 27-804(1) provides that “[u]navailability as a witness includes situations in which the declarant . . . [i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.” Under § 27-804(2)(c), the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.


The party seeking to introduce hearsay evidence pursuant to the § 27-804 exception must show that diligence was used to locate the witness and that the witness is unavailable. State v. Jordan, 229 Neb. 563, 427 N.W.2d 796 (1988). It is within the sound discretion of the trial court to determine whether the proponent has met this burden Id.

Sutton did not present any evidence of his efforts to locate Johnston, although there was some discussion between the district court and Sutton’s attorney of these efforts. The court ultimately denied Sutton’s request, however, after finding that Johnston’s statements to law enforcement did not fall under § 27-804(2)(c). In other words, the court determined that Johnston’s statements, at the time of their making, did not so far tend to subject him to criminal liability that a reasonable man in his position would not have made the statements unless he believed them to be true. We find no abuse of discretion in this determination. Although the evidence showed that Johnston was in the group approaching Sutton, he stopped short of Sutton upon Thompson’s request. There is no evidence that Johnston made any verbal or physical threats to Sutton. Johnston’s statement that he and McDaniel went outside after Sutton “intending to get into a fight,” under the circumstances of this case, is insufficient to subject him to criminal liability.

Further, there was already evidence in the record about Johnston’s actions that evening, evidence that he came outside with McDaniel; that he moved quickly, at least initially, toward Sutton; and that he was not wearing his shirt. Additional evidence regarding Johnston’s statements to police would have been cumulative.

Sutton’s assignment of error is without merit.

Sufficiency of Evidence.

Sutton asserts that the evidence was insufficient to sustain his conviction of third degree assault.

Section 28-310 provides:

(1) A person commits the offense of assault in the third degree if he:
(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or
(b) Threatens another in a menacing manner.
(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.


Sutton’s arguments in connection with this assignment of error attack the credibility of McDaniel and Hale as witnesses. It is not the job of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. See State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009). The evidence, viewed and construed most favorably to the State, is sufficient to show that Sutton intentionally, knowingly, or recklessly caused bodily injury to McDaniel and thus sufficient to support his conviction for third degree assault. Sutton’s assignment of error is without merit.

Excessive Sentence.

Sutton asserts that the district court erred in imposing an excessive sentence. Third degree assault, committed in a fight or scuffle entered into by mutual consent, is a Class II misdemeanor. § 28-310. For Class II misdemeanors, Neb. Rev. Stat. § 28-106 (Reissue 2008) provides no minimum punishment and a maximum punishment of imprisonment for 6 months, a fine of $ 1,000, or both imprisonment and fine. The court sentenced Sutton to 180 days in jail.

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 violence involved in the commission of the crime. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). 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.

Sutton’s sentence was within the statutory limits. We have reviewed the trial record and the presentence report and find no evidence that the district court placed undue emphasis on Sutton’s criminal record, as argued by Sutton, or abused its discretion in sentencing. The sentence is not excessive. Sutton’s assignment of error is without merit.


Sutton’s arguments concerning evidentiary matters are without merit. There was sufficient evidence to support Sutton’s conviction, and the district court did not impose an excessive sentence.


Leave a Reply