                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. YOUNG


  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.

                                  KENNAN YOUNG, APPELLANT.


                               Filed May 1, 2018.    No. A-17-839.


       Appeal from the District Court for Washington County: JOHN E. SAMSON, Judge. Affirmed.
       David V. Drew and Kelly Henry Turner, of Drew Law Firm, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.


       MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                       INTRODUCTION
        Keenan Young appeals from an order of the district court for Washington County denying
his motion for a new trial following a jury trial. Young argues that his due process rights were
violated due to the destruction of digital video recordings, which he argues amounted to a failure
to preserve material exculpatory evidence. For the reasons set forth below, we affirm the district
court’s overruling of Young’s motion for a new trial.
                                        BACKGROUND
       For purposes of this appeal, we will discuss the facts salient to Young’s assigned error.
Young was found guilty of three of four criminal charges following a trial by jury, including third
degree assault on an officer. The charges stemmed from an incident that occurred during the early
morning hours of September 15, 2016. That morning, law enforcement officers from the Blair
Police Department were dispatched to a physical disturbance at an apartment complex. Upon their



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arrival, officers spoke with the alleged victims and learned that Young had been involved in the
disturbance, but was no longer at the scene. The officers discovered Young at his residence and
arrested him for disturbing the peace.
         Sgt. Joshua Pfaff and Officer Sarah Smith transported Young to the Washington County
Jail. When they arrived at the jail, Young was not complying with orders from the officers. The
officers were able to place Young in a holding cell in the jail. While the officers were attempting
to shut the door to the holding cell, Young kicked at the door three times. Young allegedly struck
Sergeant Pfaff below his right knee on the third kick.
         Sergeant Pfaff testified at trial that he was aware the jail facility had cameras inside each
cell which may have recorded the incident, but he was informed that no recording was available.
Further testimony from Deputy Justin Durrett of the Washington County Sheriff’s Department
confirmed that a camera existed in the holding cell which would record items from the inside. At
the time of the incident, Officer Smith was wearing a functioning body camera, which recorded
the interactions between Young and law enforcement. However, the body camera recording did
not capture whether Young actually kicked Sergeant Pfaff below his knee as the camera did not
capture video below Sergeant Pfaff’s waist. This body camera recording was presented to the jury
during trial.
         After the State’s evidence was adduced, Young made an oral motion to dismiss all of the
charges against him due to a lack of evidence. Young also moved to dismiss the charges based on
due process grounds arguing that the failure to preserve the video recordings from inside the
holding cell amounted to destruction of material exculpatory evidence. The district court stated
that a recess would need to be taken in order to hold a hearing and receive evidence on the motion.
Young’s counsel then withdrew that part of his motion to dismiss which was based on due process
grounds.
         After the motion for directed verdict, Young presented no evidence in his defense and
rested. He then reasserted his motion to dismiss the assault on an officer charge based on due
process grounds. The district court ordered a recess and a hearing to be held on the motion. When
the district court took up the motion after the recess, Young’s counsel withdrew his motion to
dismiss for the second time. The court asked Young if he had discussed withdrawing the motion
with his counsel, and Young stated that he had discussed and agreed to the withdrawal. The case
was submitted to the jury, which returned guilty verdicts on three of the four charges.
         Young filed a motion for new trial, only as to the conviction for assault on an officer, on
May 12, 2017. Young alleged in his motion that the State failed to preserve material exculpatory
evidence which could form the basis for exonerating him. At the hearing on the motion, the district
court took judicial notice of the State’s complaint, discovery stipulations and orders, and received
an affidavit from Young’s counsel. The evidence demonstrated that Young made discovery
requests on October 12 and 26 and December 2, 2016. An email response from the Washington
County Attorney’s Office dated January 3, 2017, informed Young’s counsel that all videos from
the holding cell area are erased 30 to 45 days following the date they are recorded.
         Washington County Correction Officer Jennifer Meyer testified at the hearing. Officer
Meyer testified that there are two recording cameras facing the door of the holding cell where
Young was placed. One camera records from inside the cell, facing the door, and the other camera



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records from outside the holding cell, facing the holding cell doorway. Capt. Robert Bellamy of
the Washington County Sheriff’s Department also testified at the hearing. Captain Bellamy, who
is also the administrator of the Washington County Jail, testified that he oversees the surveillance
equipment. Captain Bellamy testified that the cameras at the jail are motion-sensor cameras and
functional at all times. However, he testified that any recording captured by the cameras is only
stored for 30 days and then the system begins to overwrite the recording with new video because
storage is limited. Bellamy also explained that issues arose with the recording equipment in
September 2016 which resulted in the jail ordering new recording equipment in October. The new
equipment was installed in November. During the installation of the new system, an error caused
the hard drive to erase all of the previously recorded videos. Captain Bellamy testified that the jail
was unable to retrieve those videos. Captain Bellamy acknowledged that the jail could have made
a copy of a video from September 15, if it had received a request to do so between September 15
and October 15, but said that no such request was ever made to his knowledge.
         The district court denied Young’s motion for a new trial from the bench, without a written
order. Young appeals here.
                                    ASSIGNMENT OF ERROR
       Young argues the district court erred in failing to grant his motion for a new trial because
his due process rights were violated due to the destruction of digital video recordings, which he
argues amounted to a failure to preserve material exculpatory evidence.
                                    STANDARD OF REVIEW
        In a criminal case, a motion for new trial is addressed to the discretion of the trial court,
and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
                                            ANALYSIS
        Young argues that the district court erred in denying his motion for a new trial because his
due process rights were violated due to the destruction of digital video recordings, which he argues
amounted to a failure to preserve material exculpatory evidence. Young argues that the deleted
holding cell recordings are material exculpatory evidence, and therefore, he need not demonstrate
that their erasure was done in bad faith. Young argues in the alternative that if it is determined that
the holding cell recordings were only potentially exculpatory, that the State acted in bad faith by
erasing the recordings since Young requested the recordings during discovery.
        Young argues that his motion for a new trial should have been granted due to the
irregularity of the proceedings and the misconduct of the State. The difficulty with Young’s
argument is that he had notice that the holding cell video had been erased more than 4 months in
advance of trial but chose not to raise the issue at a pretrial stage. Rather, Young first raised the
issue following the presentation of the State’s case. Once raised, he then chose to withdraw his
motion. He then reasserted it again after he rested his own case, only to withdraw it yet again prior
to submission of the case to the jury. The record further demonstrates that during the presentation
of the State’s case he raised the issue of the absent video in cross-examination. We also note that




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while the closing arguments were not made a part of the record, there is indication in the arguments
of counsel at the hearing on the motion for new trial that counsel for Young raised the absence of
the holding cell video in his closing argument before the jury. Therefore, it appears that the strategy
employed by Young was to let the jury know that the agents of the State had failed to preserve
what may have been important and possibly exculpatory evidence, but when that failed, assert his
due process argument. It is well-established in our jurisprudence that a party is required to timely
object to a perceived error by a trial court in order to preserve that issue for appeal. State v.
McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016) (citing State v. Collins, 281 Neb. 927, 799
N.W.2d 693 (2011)). A party is not permitted, without objection, to take the chances of a favorable
result and then, if disappointed, for the first time complain. McSwine, supra.
        Young argues in his brief that we should consider his due process argument based on the
Nebraska Supreme Court decision of State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
Young argues that the Supreme Court determined in Nelson that a defendant was not required to
object during trial to an alleged deprivation of a constitutional right due to destruction of evidence
in order to properly raise the error in a motion for new trial. We disagree.
        In State v. Nelson, the Supreme Court determined that the district court did not abuse its
discretion in denying the defendant’s motion for a new trial based on alleged newly discovered
evidence. The defendant argued that he did not discover until after trial that physical evidence of
Styrofoam cups and cigarette butts were destroyed prior to his trial. He claimed that those items
would bear the fingerprints of two men that were responsible for placing cocaine in his rental
vehicle. Id. The defendant argued that these items would constitute evidence that corroborated his
testimony and would be exculpatory. Id.
        The Supreme Court rejected Nelson’s argument, finding that the Styrofoam cups and
cigarette butts were not newly discovered evidence. The court noted that a photograph was
received at trial clearly depicting the items. The court also noted that the record demonstrated that
Nelson conducted pretrial discovery. The court ultimately concluded that the cups and cigarette
butts were not newly discovered evidence under Neb. Rev. Stat. § 29-2101(5) (Reissue 2008).
While we recognize that the Supreme Court did proceed to conduct an analysis of whether the
evidence was exculpatory “even if” it was deemed newly discovered, that analysis was not
necessary to the court’s finding and was added apparently for the sake of completeness. Therefore,
Nelson does not stand for the proposition that an appellate court should address the merits of a
posttrial motion that could have been raised at either a pretrial stage or during trial.
        The evidence offered by Young demonstrates that Young knew of the erasure of the
holding cell recordings by January 3, 2017, over 4 months prior to trial. Young did not assert in
his motion for new trial that the erasure of the video was newly discovered evidence and makes
no such claim here. Rather, his motion claims only irregularity in the proceedings and/or
misconduct by the State. He did not complain of the destruction of the recordings until the State
rested its case at trial. Young attempted to benefit from the evidence of the erasures during
cross-examination and later in closing argument. During trial, Young raised his motion to dismiss
on due process grounds on two occasions only to withdraw it without argument on both occasions
once it was clear to him that the district court intended to hold an evidentiary hearing on the
objection before conclusion of the trial. Young clearly gambled on a favorable outcome from the



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jury, and ultimately, did not succeed. It is clear that Young was able to pursue his desired strategy
at or before trial. He may not now complain after trial having denied the trial court an opportunity
to rule on his motion prior to the verdict. See McSwine, supra. Therefore, Young did not properly
preserve his due process argument for appeal. See id. Consequently, we find that the district court
did not abuse its discretion in denying Young’s motion for a new trial.
                                          CONCLUSION
       We find that the district court did not abuse its discretion in denying Young’s motion for a
new trial.
                                                                                        AFFIRMED.




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