                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. WEATHERS


  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).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                              BRANDON J. WEATHERS, APPELLANT.


                             Filed January 3, 2017.    No. A-16-305.


       Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Affirmed.
       Joseph Kuehl for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.



       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        Brandon J. Weathers appeals from his convictions in the Douglas County District Court of
two counts of first degree sexual assault of a child. Because we find no merit to the arguments
raised on appeal, we affirm.
                                        BACKGROUND
        Weathers was charged with two counts of first degree sexual assault of a child. The
evidence presented at trial established that the 13-year-old victim, H.A., was a foster child placed
in Weathers’ home in April 2014. Although H.A. was removed from Weathers’ care in June 2014,
she became pregnant in October, and DNA testing proved that Weathers was the father of the
child, which H.A. ultimately miscarried. Weathers’ defense at trial was that he never had sexual



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intercourse with H.A.; rather, the pregnancy occurred as a result of H.A. using a syringe containing
Weathers’ semen. Following his conviction, Weathers filed this appeal. Because the errors
Weathers raises do not involve the circumstances underlying the charge, we limit our recitation of
the facts to those pertinent to our analysis.
        The State initially filed an information charging Weathers on November 26, 2014. The
State amended the information narrowing the charges to two counts of first degree sexual assault
of a child. Shortly before trial was scheduled to begin, Weathers filed multiple unsuccessful
motions to continue trial. Also prior to trial, Weathers filed a motion to produce for examination,
requesting that the State produce to him a cell phone seized and examined in connection with the
case. The district court denied the motion.
        Jury trial began on December 7, 2015. Although the district court strongly advised against
it, Weathers was permitted to represent himself at trial, and his previously appointed counsels were
appointed as his legal advisors. During a break on the third day of trial, Weathers was standing
outside the courtroom in handcuffs when several jurors walked out of the jury room. He moved
for a mistrial, arguing that the jurors may have seen him in handcuffs. The district court denied the
motion.
        The jury ultimately found Weathers guilty of both counts. He was sentenced to two
consecutive terms of 50 to 80 years’ imprisonment. He now appeals to this court.
                                   ASSIGNMENTS OF ERROR
        Weathers assigns that the district court erred in (1) denying his motions to continue trial,
(2) denying his motion for mistrial, (3) denying his motion to produce for examination, (4) not
allowing him to refresh the recollection of a witness, and (5) imposing an excessive sentence. He
also asserts that we should review the evidentiary issues in the case for plain error, that he received
ineffective assistance of counsel in various respects, and that the culmination of errors at trial
denied him his right to a fair trial.
                                            ANALYSIS
Motions to Continue.
         In November and December, 2015, Weathers filed numerous motions to continue trial, all
of which were denied, and trial ultimately began on December 7. In his brief on appeal, he
specifically argues that the district court erred in failing to grant two of his motions to continue.
         First, Weathers requested a continuance on November 4, 2015, arguing that neither he nor
his trial counsel had received copies of reports of the data extracted from the cell phones seized in
connection with the case, including text message information. The State agreed to ensure that all
of the reports from the cell phone analysis had been turned over to Weathers, and the district court
denied the motion, finding that Weathers had a month remaining to prepare for trial.
         In addition, Weathers moved to continue trial on December 3, 2015. At that hearing, he
argued that he still believed text messages were missing from one of his cell phones and reported
that his law library time had been suspended. The court denied the motion to continue.
         A decision whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Edwards, 278
Neb. 55, 767 N.W.2d 784 (2009). An abuse of discretion occurs when a trial court’s decision is


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based upon reasons that are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. Id. And there is no abuse of discretion by the court in denying a
continuance unless it clearly appears that the party seeking the continuance suffered prejudice as
a result of that denial. Id.
        Weathers’ requests for continuances were premised on his belief that at least one, if not
two, of the cell phones seized during the investigation contained text messages between him and
H.A. that would exonerate him. He claimed that the State was either refusing to turn over reports
containing those pertinent text messages or had deleted the text messages so they would not appear
on reports turned over to Weathers. He argued that trial should have been continued so that the
State could turn over all cell phone information to him and so that he would have had sufficient
time to review those reports. However, there was no additional information to be provided to
Weathers. The State continually insisted that it had turned over all cell phone information to
Weathers, and at each hearing on Weathers’ motions to continue, the State agreed to
“double-check” to ensure it had provided all cell phone extraction reports to Weathers. No
additional unreported information was found or disclosed to Weathers on the eve of trial.
Therefore, Weathers has not established that he suffered any prejudice by the denial of his motions
to continue. Accordingly, this assignment of error has no merit.
Motion for Mistrial.
         On the third day of trial, Weathers moved for mistrial on the ground that several jurors may
have seen him in handcuffs during a break in the trial. A sheriff’s deputy testified that while
Weathers was in the hallway handcuffed, a juror was sitting nearby on her cell phone, and upon
noticing her, the deputy and another sheriff’s deputy stood in front of the juror to block her view
of Weathers. A minute or two later, five or six other jurors walked out into the area, but the deputies
and Weathers’ legal advisors were still standing near Weathers blocking the view of the handcuffs.
The situation lasted one or two minutes. The deputy testified that there was no indication any of
the jurors saw anything but acknowledged that it was possible they could have seen Weathers in
handcuffs. The district court declined to grant a mistrial, finding that Weathers failed to establish
that a juror actually saw him in handcuffs.
         Whether to grant a motion for mistrial is within the trial court’s discretion, and an appellate
court will not disturb its ruling unless the court abused its discretion. State v. Dixon, 286 Neb. 334,
837 N.W.2d 496 (2013). In alleging error in failure to grant a motion for mistrial, the defendant
must prove that the alleged error actually prejudiced him or her, rather than creating only the
possibility of prejudice. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
         The general rule is that a defendant who is on trial should be free from shackles unless they
are necessary to prevent violence or escape. State v. Dixon, supra. This is because it is central to
the right to a fair trial, guaranteed by the 6th and 14th Amendments, that one accused of a crime
is entitled to have his or her guilt or innocence determined solely on the basis of the evidence
introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial. State v. Dixon, supra. But application of the general
rule must be tempered with some measure of common sense. Id.




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        Jurors are aware that the defendant did not arrive there by choice or happenstance. Id. It is
not possible to eliminate from trial procedures every reminder that the State has chosen to marshal
its resources against a defendant to punish him for allegedly criminal conduct. Id.
        In State v. Dixon, the defendant moved unsuccessfully for mistrial after prospective jurors
may have seen him in leg restraints during jury selection. In affirming the denial of his motion, the
Supreme Court considered the incident in the context of the entire proceeding, including the fact
that the record was unclear whether any prospective juror actually ever saw him in leg restraints.
        Similarly, in the present case, it is unclear whether any juror actually saw Weathers in
handcuffs. Once it became apparent that a juror was in the area, the deputies took immediate steps
to conceal the handcuffs from both the view of the juror sitting in the area, who appeared focused
on her cell phone during the incident, and the juror who subsequently walked out into the hallway.
Those jurors walked past Weathers without hesitation on their way to the restroom or elsewhere
during a break in trial, and the entire event lasted only one or two minutes. The jury was aware
that Weathers had been charged with a serious crime, and evidence was presented over the course
of a four-day trial. Based on the foregoing, we conclude that Weathers has failed to prove that the
alleged error actually prejudiced him, rather than creating only the possibility of prejudice. We
therefore find no abuse of discretion in the denial of Weathers’ motion for mistrial.
Motion to Produce for Examination.
        Prior to trial, Weathers filed a motion to produce for examination. He requested that the
State provide to him a cell phone seized from him during the investigation of his case, because he
believed there were text messages on that phone that did not appear on any report. The State agreed
that it would ensure all of the cell phones had been analyzed and the reports turned over to
Weathers; however, it objected to allowing Weathers access to the phone itself. The district court
observed that generally a defendant is provided a report after evidence has been analyzed, not the
evidence itself, and denied the motion.
        Weathers cites to no authority which would allow the district court to authorize the release
of a piece of physical evidence to the defendant directly, and we have found none. We note that
Weathers was not requesting that the cell phone be released to an independent expert for
examination; rather, he wanted the actual device delivered to him at the prison where he was
incarcerated pending trial. We conclude the district court did not err in denying his request.
Refresh Recollection.
         During his cross-examination of H.A. at trial, Weathers posed numerous questions to her
regarding information she provided during a November 2014 forensic interview. H.A. repeatedly
indicated she did not remember what she said during the interview. Weathers then requested
permission to have H.A. watch a video recording of the interview in order to refresh her
recollection. The court denied the request. Weathers challenges this decision on appeal.
         We first note that the Rules of Evidence provide that the judge shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence, in part, to
avoid needless consumption of time. See Neb. Rev. Stat. § 27-611(1) (Reissue 2008). Weathers’
request came in the middle of a jury trial, and the district court observed that H.A. had already
testified that she lied during her interview to protect him. In addition, although Weathers argues


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that the court erred in denying his request to play the videotape to refresh H.A.’s recollection, he
does not indicate how the denial was prejudicial. We find it was not.
         Weathers’ request came after H.A. repeatedly stated that she did not remember what she
had said during the November 2014 forensic interview. None of the questions Weathers posed
were directed at his defense theory that H.A.’s pregnancy was the result of using a syringe and not
the result of a sexual relationship. Rather, the questions were designed to attack H.A.’s credibility
and establish inconsistencies in responses she gave during the interview and her responses at trial.
However, at one point during cross-examination, H.A. replied, “I don’t remember what I said to
[the interviewer during the November 2014 interview], because it was probably all a lie. So I really
don’t remember.” At another point, H.A. responded to Weathers’ question about the November
interview by saying, “I actually lied just to protect you.” Thus, H.A. herself admitted that she lied
during the interview, and any additional evidence attacking her credibility, particularly with
respect to the November interview, would have been cumulative.
         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. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014). We cannot find that the
district court abused its discretion in refusing to allow H.A. to watch the videotape of her forensic
interview as an attempt to refresh her recollection during trial.
Plain Error in Evidentiary Issues.
        Weathers argues that there were numerous instances where testimony was heard by the
jury when a timely objection would have prevented the jury from hearing that evidence. He cites
numerous instances where, for example, a witness was allowed to provide hearsay statements
without objection. He urges us to review those instances under the plain error doctrine and find
that, when taken as a whole, they prejudiced him and denied him a fair trial.
        Although an appellate court ordinarily considers only those errors assigned and discussed
in the briefs, the appellate court may, at its option, notice plain error. State v. Nadeem, 284 Neb.
513, 822 N.W.2d 372 (2012). Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness
of the judicial process.
        We decline to review for plain error the evidentiary issues Weathers identifies in his brief.
He acknowledges that a timely objection would likely have successfully prevented such evidence
from reaching the jury; however, Weathers elected to represent himself at trial, against the advice
of the district court.
        A criminal defendant who proceeds pro se is held to the same trial standard as if he or she
were represented by counsel, and it is not up to the trial court to conduct the defense of a pro se
defendant. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006). It is undeniable that in most
criminal prosecutions defendants could better defend with counsel’s guidance than by their own
unskilled efforts. Id. And although he may conduct his own defense ultimately to his own
detriment, his choice must be honored out of “that respect for the individual which is the lifeblood
of the law.” Id. at 889, 716 N.W.2d at 704. A defendant who elects to proceed pro se cannot
thereafter complain of the quality of his or her own defense. State v. Pullens, 281 Neb. 828, 800



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N.W.2d 202 (2011). Because Weathers elected to proceed pro se at trial, he cannot now complain
about evidentiary errors which could have been prevented by a timely objection at trial.
Excessive Sentence.
          Weathers argues that the district court abused its discretion in imposing an excessive
sentence. We disagree.
          Weathers was convicted of first degree sexual assault of a child, which is a Class IB felony
with a maximum prison sentence of life and a mandatory minimum of 15 years. Neb. Rev. Stat.
§§ 28-319.01 (Reissue 2008) and 28-105 (Supp. 2015). Thus, Weathers’ consecutive sentences of
50 to 80 years’ imprisonment fall within the statutory limits. Nevertheless, he argues that his
sentences are excessive because the district court failed to consider all relevant factors instead
focusing on him not accepting responsibility for his actions.
          An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015). 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. 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 sentencing, the district court indicated that it considered the required factors and
information contained in the presentence investigation report. In fashioning Weathers’ sentences,
the court acknowledged Weathers’ failure to take responsibility for his actions. But more
importantly, the court relied on the nature of the offenses and Weathers’ actions after the
investigation began. H.A. was Weathers’ 13-year-old foster daughter, and the sexual assaults
began during the 7-week period she resided in his home. After she was moved from Weathers’
home, he continued to sneak cell phones to her, followed her around, and maintained a sexual
relationship with her, impregnating her more than 4 months after she was removed from his care.
The district court observed that Weathers was the only father figure H.A. ever had, which made
his violation of her trust that much worse. And H.A.’s caseworkers were extremely fearful for
H.A.’s safety and exhausted almost all of their options trying to keep her away from Weathers.
Based on the foregoing, we cannot say that the sentences constitute an abuse of discretion.
Ineffective Assistance of Counsel.
        Weathers claims that during the time he was represented by counsel, he received ineffective
assistance.
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). An appellate court
may address the two prongs of this test, deficient performance and prejudice, in either order. Id.




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To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. Id.
         Weathers first claims that trial counsel was ineffective for failing to file a pretrial motion
challenging the DNA evidence which established that he was the father of H.A.’s baby. We
conclude that Weathers failed to demonstrate that he was prejudiced by such inaction, because he
admitted to fathering the child. Weathers’ testified on his own behalf at trial and stated, “I helped
this girl get pregnant.” His explanation was that he masturbated into a baggie, placed the contents
of the baggie into a syringe, and gave the syringe to H.A. who then impregnated herself. Therefore,
he cannot demonstrate a reasonable probability that he would not have been convicted if the DNA
evidence would have been excluded as evidence at trial.
         Weathers next claims that trial counsel was ineffective for failing to file a pretrial motion
challenging search warrants which were used to collect his DNA and search various cell phones
found in his possession. He asserts that “damaging evidence” was obtained as a result of the search
warrants, but he does not elaborate. Based on the broad nature of Weathers’ allegation, the nature
of the “damaging evidence” is unclear, and we are unable to discern whether the evidence was
cumulative, as explained above. He does not identify any specific evidence which should have
been suppressed, nor does he specify any legal basis for filing such a motion. Therefore, Weathers
has not alleged deficient performance with sufficient particularity, and this claim is not properly
raised in this appeal. See State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
         In his next ineffective assistance of counsel claim, Weathers argues, liberally construed,
that trial counsel was ineffective in failing to obtain an expert witness to examine a cell phone for
missing text messages. We find the record is insufficient to address this claim on direct appeal.
Weathers repeatedly insisted that the cell phone reports he received from the State were missing
information on text messages he exchanged with H.A. We are unable to discern from our record
trial counsel’s reasoning for not requesting the appointment of an independent expert to examine
the cell phones and determine whether any additional text messages were present.
         Finally, Weathers asserts that trial counsel was ineffective in failing to secure the presence
of two witnesses to testify at trial. He names the witnesses he asked his legal advisors to subpoena,
but the record does not indicate whether Weathers informed trial counsel that he wanted these
witnesses to be called to testify at trial prior to the time Weathers elected to represent himself. We
therefore find that the record before us is insufficient to address this claim.
Cumulative Errors.
        Weathers argues that the cumulative nature of the errors that occurred at trial violated his
constitutional right to a fair trial. We find no merit to this argument.
        The Nebraska Supreme Court has recognized the doctrine of cumulative error in the context
of a criminal jury trial, explaining that although one or more trial errors might not, standing alone,
constitute prejudicial error, their cumulative effect may be to deprive the defendant of his
constitutional right to a public trial by an impartial jury. State v. Smith, 292 Neb. 434, 873 N.W.2d
169 (2016). Having found no merit to any of Weathers’ assigned errors, we conclude that Weathers
was not denied the right to a public trial by an impartial jury.




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                                    CONCLUSION
       We find no merit to any of the errors assigned on appeal. We therefore affirm the
convictions and sentences.
                                                                              AFFIRMED.




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