Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 12:08 AM CDT




                                                         - 415 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                  STATE v. STABLER
                                                  Cite as 305 Neb. 415




                                        State of Nebraska, appellee, v.
                                         Eddy D. Stabler, appellant.
                                                    ___ N.W.2d ___

                                          Filed March 27, 2020.    No. S-19-360.

                 1. Jury Instructions. Whether the jury instructions given by a trial court
                    are correct is a question of law.
                 2. Judgments: Appeal and Error. When reviewing questions of law, an
                    appellate court resolves the questions independently of the conclusion
                    reached by the lower court.
                 3. Convictions: Evidence: Appeal and Error. 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 favor-
                    ably to the State, is sufficient to support the conviction.
                 4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 5. Jury Instructions: Proof: Appeal and Error. To establish reversible
                    error from a court’s refusal to give a requested instruction, an appel-
                    lant has the burden to show that (1) the tendered instruction is a correct
                    statement of the law, (2) the tendered instruction is warranted by the
                    evidence, and (3) the appellant was prejudiced by the court’s refusal to
                    give the tendered instruction.
                 6. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
                    instruct on a lesser-included offense if (1) the elements of the lesser
                    offense for which an instruction is requested are such that one cannot
                    commit the greater offense without simultaneously committing the lesser
                    offense and (2) the evidence produces a rational basis for acquitting the
                                    - 416 -
           Nebraska Supreme Court Advance Sheets
                    305 Nebraska Reports
                             STATE v. STABLER
                             Cite as 305 Neb. 415

    defendant of the greater offense and convicting the defendant of the
    lesser offense.
 7. Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
 8. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation 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.
 9. ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment 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.

  Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
   Joseph D. Nigro, Lancaster County Public Defender, Shawn
Elliott, and Ella Newell, Senior Certified Law Student, for
appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
   Heavican, C.J.
                     INTRODUCTION
   Defendant Eddy D. Stabler was convicted by a jury of sec-
ond degree assault and use of a deadly weapon to commit a
felony. He was sentenced to a total of 15 to 25 years’ imprison-
ment. He appeals. We affirm.
                 FACTUAL BACKGROUND
   Stabler and the victim, Jacinda Stabler, were married and
resided together on B Street in Lincoln, Nebraska, with their
                              - 417 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. STABLER
                        Cite as 305 Neb. 415

four children and the children of each of them from previous
relationships with other individuals. In April 2016, Jacinda
filed for divorce. Stabler moved out of the family home to live
with his sister, who resided elsewhere in Lincoln.
   At approximately this same time, Stabler began communi-
cating via electronic messaging with a relative, Athea Stabler.
Stabler and Athea were both members of the Omaha Tribe, and
Athea lived in Macy, Nebraska.
   As part of a cooperation agreement, Athea testified at
trial as to her role in Jacinda’s assault. According to Athea’s
testimony, in Stabler’s messages, which she later deleted,
Stabler told Athea that Jacinda had been “cheating on” him
and asked Athea whether she would “handle the situation.”
Though by all indications Athea did not know Jacinda, she
agreed to help Stabler because she viewed Jacinda as a threat
to the family.
   On May 28, 2016, Athea came to Lincoln to attend an
event at a community center. While at this event, Athea com-
municated with Stabler, again via electronic messaging, who
wondered if “she” was at the event. Athea took “she” to mean
Jacinda. Athea told Stabler that “she” was not in attendance.
Stabler then asked whether Athea was staying overnight. Athea
indicated that she was driving back to Macy with her mother
and stepfather. At this, Stabler invited Athea to a family birth-
day party at a local bar and offered to drive her back to Macy
the next day “if u can handle this.” Athea testified that she
understood “this” to refer to assaulting Jacinda. Athea agreed,
and Stabler and Athea established general terms for payment—
“Yeah give u sum cash r sun chit either way half an half we
can talk about it”—which Athea explained meant she was to
earn some combination of money and drugs. Unlike the earlier
messages, these messages were not deleted and are part of
the record.
   At the conclusion of the event at the community center,
Athea met with Stabler and others at the home of Stabler’s
sister to attend the birthday party. Athea testified that she
                              - 418 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. STABLER
                        Cite as 305 Neb. 415

spoke alone with Stabler prior to leaving for the party and
that Stabler indicated, in conformity with his and Athea’s elec-
tronic messaging communications, that Athea was to assault
Jacinda that night. According to Athea’s testimony, Stabler told
Athea to “leave a scar on [Jacinda’s] face and to cut off her
mane.” In return, Athea was to be paid $400 and 4 grams of
methamphetamine.
   After attending the birthday party, Stabler and Athea dropped
another partygoer off at the home of Stabler’s sister, then went
to a different location to “get high.” During the car ride to the
other location, Stabler gave Athea a knife.
   At some point, Stabler and Athea went to yet another home.
Athea testified that the individuals who lived in that home
drove her to Jacinda’s house and waited in the car while Athea
was inside. Athea located Jacinda in the home, where she was
sleeping in a bed with some of her children. That Jacinda was
with her children gave Athea pause, and she testified that she
decided only to threaten Jacinda. As such, she put the knife
to Jacinda’s throat; this woke Jacinda, who began screaming.
Athea grabbed Jacinda by her hair and began to hit her. Jacinda
fought back and kicked at Athea, so Athea began stabbing
Jacinda and tried to cut off her hair. Having stabbed Jacinda,
though not cut her hair, Athea fled the house, dropping the
knife on her way out.
   Over the next few months, Stabler and Athea continued
to communicate via electronic messaging. As with the mes-
sages sent on the day of the assault, these later messages are
in the record. According to Stabler, the messages, reprinted in
relevant part below, can be explained because Athea was seek-
ing drugs. However, Athea testified that she initiated contact
and attempted to meet with Stabler because she felt she was
“gypped” by the compensation she received from Stabler for
assaulting Jacinda. Athea further testified that she had received
“some meth” and “just a hundred dollars,” when she was
promised $400 and more methamphetamine than she ultimately
received. Athea did not think she would be successful simply
                                - 419 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                          STATE v. STABLER
                          Cite as 305 Neb. 415

telling that to Stabler, so she wanted to force a face-to-face
meeting with him.
    During the course of these messages, Athea told Stabler that
“iWent in With aKnife And Left WithOut It. My FingerPrints
On That Shit. So Its Only aMatter Of Time.” She also mes-
saged, “Ya Hear AnyThing About That Knife? That Shit Got
Me Worried Like aMuhFcka. Ugh.” On another occasion,
Stabler warned Athea, “Dude the cops . . . relax k” and “I got u
. . . u have my word.” In response, Athea asked, “Any Updates
With The Investigation?” Stabler informed Athea that “jacinda
is pointing fingers at me . . . lol . . . I got this shit I tel u more
in person u just relax as best u can.” Athea responded, “Im
Tryin’ Unk. Juzt Impatient. Cuz if AnyThing Comes Bck On
Me iAint Trynna Be Broke or Sober.” On yet another occasion,
Athea asked for news updates. Stabler said that there were no
updates, but that that was good news, and that the police were
“Looking for a 6′ft tall 230lbs Mexican male,” to which Athea
responded, “Ha! With Dark Curly Hair.” Stabler then replied,
“Lol . . . shhh hit me up when ur in town.”
    Meanwhile, shortly after the assault, law enforcement
received an anonymous tip that Athea had assaulted Jacinda.
Athea was eventually questioned while being held on other
charges. Athea admitted to assaulting Jacinda, but said that she
would not have done so absent the arrangement with Stabler.
Athea was convicted of second degree assault and sentenced to
18 to 20 years’ imprisonment.
    Stabler was found guilty on both counts. He appeals.
                 ASSIGNMENTS OF ERROR
   Stabler assigns as error that the district court erred by
(1) failing to give a limiting instruction when requested in
response to the State’s improper burden-shifting argument dur-
ing rebuttal, (2) prohibiting Stabler from explaining that his
prior convictions were for forgery, (3) failing to instruct the
jury on the lesser-included offense of third degree assault, (4)
finding that the evidence was sufficient to sustain Stabler’s
convictions, and (5) imposing excessive sentences.
                                   - 420 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                             STATE v. STABLER
                             Cite as 305 Neb. 415

                    STANDARD OF REVIEW
   [1,2] Whether the jury instructions given by a trial court are
correct is a question of law. 1 When reviewing questions of law,
an appellate court resolves the questions independently of the
conclusion reached by the lower court. 2
   [3] Regardless of whether the evidence is direct, circumstan-
tial, 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 stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters 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 suf-
ficient to support the conviction. 3
   [4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 4

                           ANALYSIS
Limiting Instruction.
   Stabler first assigns that statements made by the State in
rebuttal closing arguments effectively shifted the burden of
proof from the State to the defense and that the district court
erred in not giving a limiting instruction to correct this burden
shifting.
   [5] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
1
    State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
2
    Id.
3
    State v. Case, 304 Neb. 829, 937 N.W.2d 216 (2020).
4
    State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
                                    - 421 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              STATE v. STABLER
                              Cite as 305 Neb. 415

evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. 5
   As relevant to this assignment of error, the record shows
that during the State’s case in chief, it offered the testimony of
one of the investigating officers. That officer testified that the
police were able to locate just one of the two individuals who
drove Athea to Jacinda’s home and that the individual refused
to speak with them.
   During closing arguments, defense counsel noted that the
State was not able to produce any witnesses to corroborate
Athea’s testimony, including either of those two individuals.
Defense counsel then noted that though the State claimed that
neither individual would cooperate, it was “not an excuse” and
did not change the State’s burden of proof.
   In response to this, the State commented in its rebuttal
argument that it “[did not] deny [that] it’s [the State’s] bur-
den to prove this case beyond a reasonable doubt, but parties
have the power to subpoena, both parties have the power to
compel witnesses,” apparently suggesting that Stabler, too,
could have called these witnesses. Defense counsel objected
at this point and requested the jury to be instructed that the
burden never shifts to the defendant. The district court sus-
tained the objection and noted, “The comments of the State
are stricken from the record, and the jury is not to consider
those comments.”
   On appeal, Stabler argues that the district court erred in not
giving a limiting instruction regarding burden shifting. While
the district court did not immediately give the specific limiting
instruction Stabler requested, it struck the comments in ques-
tion and specifically instructed the jury that it should disregard
the comments. And only a short time later, just prior to submis-
sion of the case, the trial court again so instructed the jury, both
orally and in writing. The instructions informed the jury that it
should not consider as evidence statements or arguments made
by the attorneys, objections to questions, or testimony the jury
5
    State v. Case, supra note 3.
                                  - 422 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            STATE v. STABLER
                            Cite as 305 Neb. 415

had previously been told to disregard. In addition, the jury was
instructed that the State had the burden to prove Stabler’s guilt.
The jury was also informed about the State’s burden through-
out the trial.
   We find no error in the district court’s handling of this mat-
ter. And even if there was error, it was not prejudicial. Stabler’s
first assignment of error is without merit.
Admissibility of Stabler’s Testimony
Regarding Nature of His Prior
Felony Convictions.
   In his second assignment of error, Stabler assigns that the
district court erred in finding that he could not testify on direct
examination as to the basis of his prior felony convictions.
   During the course of trial, and just prior to Stabler’s taking
the stand to testify in his own behalf, the State moved in limine
to prohibit Stabler from testifying as to the nature of his two
prior felony convictions. That motion was granted, and Stabler
made an offer of proof that had he been permitted to testify,
he would have stated his prior convictions were for crimes of
dishonesty, specifically forgery.
   As relevant to this issue, Neb. Rev. Stat. § 27-609(1)
(Reissue 2016) states:
      For the purposes of attacking the credibility of a witness,
      evidence that he has been convicted of a crime shall be
      admitted if elicited from him or established by public
      record during cross-examination, but only if the crime
      (a) was punishable by death or imprisonment in excess of
      one year under the law under which he was convicted or
      (b) involved dishonesty or false statement regardless of
      punishment.
   The issue presented in this case was addressed by the
Nebraska Court of Appeals in State v. Howell. 6 The Court of
Appeals examined this court’s case law regarding § 27-609,
and it concluded:
6
    State v. Howell, 26 Neb. App. 842, 924 N.W.2d 349 (2019).
                                     - 423 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                             STATE v. STABLER
                             Cite as 305 Neb. 415

      [W]e are constrained to find that the district court did not
      err in prohibiting [the defendant] from testifying as to
      the specifics of his prior felony conviction. Pursuant to
      [§ 27-609], [the defendant] was permitted to testify that
      he had previously been convicted of a felony or a crime
      involving dishonesty. He was not permitted to divulge the
      specifics of his prior conviction, as such information was
      not relevant to his credibility. 7
   Stabler argues in his brief that the district court erred,
because without evidence on the nature of the felonies, “the
jury was left to wonder about the nature of the prior felony
convictions, in particular, left to wonder whether his felony
convictions were for crimes of violence.” 8 Stabler asks this
court to reverse the Court of Appeals’ decision in Howell.
   We need not decide whether Howell was wrongly decided,
because in this case, the evidence Stabler wished to admit
was presented to the jury. The record shows that Stabler was
permitted to testify, without objection or cross-examination,
that his felonies were for crimes of dishonesty; thus, the
jury was informed that Stabler’s felonies were not for crimes
of violence.
   We decline to address Stabler’s contention, made for the
first time in oral arguments in this case, that there is a dis-
tinction between forgery and other crimes of dishonesty. This
contention was not raised below, nor was it assigned or argued
in his brief.
   There is no merit to Stabler’s second assignment of error.
Lesser-Included Instruction.
   Stabler also assigns that the district court erred in refus-
ing to give his requested instruction for the lesser-included
offense of third degree assault. He contends Athea testified that
after she entered Jacinda’s home and found Jacinda sleeping
with her children, she put the knife away and abandoned the
7
    Id. at 869, 924 N.W.2d at 371.
8
    Brief for appellant at 37.
                                    - 424 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                             STATE v. STABLER
                             Cite as 305 Neb. 415

original plan. Stabler further notes that Athea attacked Jacinda
only to keep her from screaming. Stabler argues that even
then, Athea attacked at first only by punching Jacinda, and that
Athea did not use the knife until Jacinda kicked her. Stabler
argues that this created a causal break, that Athea’s actions
using the knife after this point cannot be attributed to Stabler,
and that there was a “rational basis” to support a third degree
assault instruction. 9
   [6] A court must instruct on a lesser-included offense if
(1) the elements of the lesser offense for which an instruc-
tion is requested are such that one cannot commit the greater
offense without simultaneously committing the lesser offense
and (2) the evidence produces a rational basis for acquit-
ting the defend­ant of the greater offense and convicting the
defendant of the lesser offense. 10 The State does not dispute,
and our case law supports, that third degree assault is a lesser-
included offense of second degree assault. A person commits
the offense of second degree assault by committing the offense
of third degree assault of causing, intentionally, knowingly,
or recklessly, bodily injury to another by the use of a danger-
ous instrument.
   In State v. Al-Zubaidy, 11 the defendant was charged with sec-
ond degree assault. An issue on appeal was whether a lesser-
included instruction on the offense of third degree assault was
warranted. We held such an instruction was not warranted,
because the uncontroverted evidence established that a knife
was used in perpetration of the assault. We noted:
      Where the prosecution has offered uncontroverted evi-
      dence on an element necessary for a conviction of the
      greater crime but not necessary for the lesser offense, a
      duty rests on the defendant to offer at least some evidence
 9
     Id. at 41.
10
     State v. Oliveira-Coutinho, 304 Neb. 147, 933 N.W.2d 825 (2019).
11
     State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
                                    - 425 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              STATE v. STABLER
                              Cite as 305 Neb. 415

      to dispute this issue if he or she wishes to have the benefit
      of a lesser-offense instruction. 12
   Here, the evidence was uncontroverted that Athea entered
Jacinda’s house with a knife that she intended to use, and in
fact did use, to assault Jacinda. It was Stabler’s duty to raise
at least some evidence to dispute this issue. Stabler argues that
Athea’s decision not to assault Jacinda after seeing Jacinda
with her children was a causal break that disputed the evidence
of second degree assault and entitled him to an instruction for
the lesser-included offense of third degree assault.
   But this was not a causal break. Any momentary hesita-
tion on Athea’s part does not change the fact that Athea took
a knife to Jacinda’s home and attacked Jacinda with the knife
and that the jury found Stabler guilty of that crime under
an aiding and abetting theory. Moreover, in finding Stabler
guilty of both second degree assault and of use of a weapon to
commit a felony, the jury agreed that there was a connection
between Stabler’s arranging for the assault and Athea’s use of
the weapon.
   There is no merit to Stabler’s third assignment of error.
Sufficiency of Evidence.
   Stabler next assigns that the district court erred in find-
ing there was sufficient evidence to support his convictions.
He argues first that Athea was not credible and that no other
evidence supported Stabler’s guilt. Stabler also argues that
because Athea had second thoughts about using the knife to
assault Jacinda when she saw the children in the room with
Jacinda, such constituted an abandonment of the original plan
and was a casual break in the chain of events. For that reason,
the subsequent attack was attributed solely to Athea and there
was no aiding and abetting liability on Stabler’s part.
   Stabler’s contention that Athea was not credible is not
relevant to our determination of whether there was sufficient
12
     Id. at 607, 641 N.W.2d at 373-74.
                                        - 426 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                               STATE v. STABLER
                               Cite as 305 Neb. 415

e­ vidence to support the conviction. It is not the role of an
 appellate court to pass on the credibility of the witnesses, or
 otherwise resolve conflicts in or reweigh the evidence. 13 Rather,
 if in viewing the evidence in a light most favorable to the State
 there was any evidence to support Stabler’s guilt, such is suf-
 ficient to support the convictions. 14 In this case, Athea testified
 that she used a knife, given to her by Stabler, to stab Jacinda;
 that she did so at Stabler’s request; and that she was paid to do
 so. This is enough to support Stabler’s convictions.
     Stabler’s contention that there was insufficient evidence to
 support his convictions because Athea abandoned the original
 plan and thereafter was solely responsible for Jacinda’s assault
 is also without merit. As noted above, this was not a causal
 break relieving Stabler of responsibility under an aiding and
 abetting theory. This conclusion is reinforced, again as noted
 above, by the fact that the jury found Stabler guilty of second
 degree assault and use of a weapon to commit a felony.
     There is no merit to Stabler’s fourth assignment of error.
Excessive Sentences.
   Finally, Stabler assigns that the sentences imposed by the
district court were excessive. Stabler was convicted of sec-
ond degree assault, a Class IIA felony, and sentenced to 10
to 15 years’ imprisonment. He was also convicted of use of a
weapon to commit a felony, a Class II felony, and sentenced to
5 to 10 years’ imprisonment. The sentences were to be served
consecutively.
   [7] Under Neb. Rev. Stat. § 28-105 (Reissue 2016), a Class
IIA felony is punishable by a maximum of 20 years’ imprison-
ment. There is no minimum. A Class II felony is punishable
by a maximum of 50 years’ imprisonment and a minimum of
1 year’s imprisonment. Where, as here, a sentence imposed
within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court
13
     See State v. Case, supra note 3.
14
     See id.
                                       - 427 -
              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                               STATE v. STABLER
                               Cite as 305 Neb. 415

abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determining
the sentence to be imposed. 15
   [8,9] In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are 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. 16 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. 17
   A review of the record shows that not only were Stabler’s
sentences within statutory limits, they were imposed based on
Stabler’s plotting to have his wife, the mother of his children,
assaulted. The sentences were not based on any inappropriate
or irrelevant information. The district court did not abuse its
discretion in sentencing Stabler, and there is no merit to his
final assignment of error.
                      CONCLUSION
   The convictions and sentences of the district court are
affirmed.
                                               Affirmed.
   Freudenberg, J., not participating.
15
     State v. Iddings, supra note 4.
16
     Id.
17
     Id.
