Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/28/2017 08:08 AM CST




                                                        - 551 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                                    STATE v. HUFF
                                                Cite as 24 Neb. App. 551




                                        State of Nebraska, appellee, v.
                                          Jeffrey A. Huff, appellant.
                                                    ___ N.W.2d ___

                                        Filed February 28, 2017.   No. A-15-897.

                1.	 Trial: Jurors. The retention or rejection of a juror is a matter of discre-
                     tion for the trial court. This rule applies both to the issue of whether a
                     venireperson should be removed for cause and to the situation involving
                     the retention of a juror after the commencement of trial.
                2.	 Trial: Motions to Dismiss: Jurors: Appeal and Error. The standard
                     of review in a case involving a motion to dismiss a juror is whether the
                     trial court abused its discretion.
                3.	 Motions for Mistrial: Appeal and Error. Decisions regarding motions
                     for mistrial are directed to the discretion of the trial court, and will be
                     upheld in the absence of an abuse of discretion.
                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.	 Trial: Juries. Neb. Rev. Stat. § 29-2006 (Reissue 2008) establishes
                     when jurors in a criminal trial may be challenged for cause.
                 6.	 ____: ____. All challenges for cause shall be made before the jury is
                     sworn, and not afterward.
                7.	 ____: ____. Neb. Rev. Stat. § 29-2004 (Reissue 2008) sets forth the
                     procedure for replacing a juror who is discharged during trial with an
                     alternate juror and refers to the discharge of a juror who has already
                     been chosen as a juror.
                8.	 Sentences. The appropriateness of a sentence is necessarily a subjec-
                     tive 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.

                 Appeal from the District Court for Lancaster County: Robert
               R. Otte, Judge. Affirmed.
                              - 552 -
         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                          STATE v. HUFF
                      Cite as 24 Neb. App. 551

  Joseph D. Nigro, Lancaster County Public Defender, and
Robert G. Hays for appellant.
  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
  Moore, Chief Judge, and R iedmann and Bishop, Judges.
  R iedmann, Judge.
                      INTRODUCTION
   Jeffrey A. Huff appeals from his conviction of first degree
sexual assault in the district court for Lancaster County. On
appeal, he challenges the court’s dismissal of a juror and
his corresponding motion for mistrial, and he claims that he
received an excessive sentence. Finding no merit to the errors
raised, we affirm.
                        BACKGROUND
   Huff was convicted by a jury of first degree sexual assault.
Because the errors he raises on appeal do not involve the cir-
cumstances underlying the charge, we limit our recitation of
the facts to those pertinent to our analysis.
   The State filed an information charging Huff on April 15,
2015. Trial began with jury selection on August 10. Both par-
ties questioned the prospective jurors and passed the panel for
cause. The parties then exercised their peremptory challenges,
and the jury, composed of 12 jurors and 1 alternate, was sworn
in. The proceedings were then adjourned for the day, and the
jury was excused until the following morning.
   When trial reconvened on August 11, 2015, one juror, M.F.,
communicated that he was anxious about serving on the jury
and was brought in to discuss the issue with the court and par-
ties. M.F. explained that due to his upbringing, which included
crime, gangs, drugs, and domestic assault, he did not think he
was “suitable for [jury service] at all.” M.F. was questioned
as to whether he could listen to the evidence and jury instruc-
tions and be fair and impartial. He initially expressed that he
did not think he would “be fair due to” his background and
                               - 553 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

experiences. He declined to state whether he thought he would
be biased toward the State or toward Huff and indicated only
that he felt he was not fit for jury service. Upon further ques-
tioning, however, M.F. agreed to follow the law and stated that
he believed he could follow the instructions given, place his
history and background aside, and fairly and impartially make
a decision based on the evidence.
   The State then moved to strike M.F. from the jury for cause,
a motion to which Huff objected. The district court denied the
motion at that point, observing that M.F. had taken the oath
administered to the jury and opining that he perhaps merely
experienced anxiety about jury service during the overnight
break. The court indicated, however, that “we [could] keep an
eye on that issue” as the trial progressed.
   The parties then presented their evidence. After both parties
rested, outside the presence of the jury, the court again raised
the issue of M.F.’s fitness for jury service. The court expressed
concern as to whether M.F. had been paying attention dur-
ing trial but acknowledged the difficulty in making such a
determination. After a brief discussion, the proceedings were
adjourned to complete the jury instructions.
   When the parties reconvened later that afternoon, the State
offered into evidence a transcript of the initial questioning of
M.F. and a printout of M.F.’s criminal history. Both exhib-
its were received into evidence over Huff’s objection. The
State argued that on a pretrial questionnaire, which was also
received into evidence, M.F. had not been forthcoming about
the extent or nature of his criminal history. The State then
moved to strike M.F. from the jury for cause and replace
him with the alternate juror. The court noted that after M.F.
initially raised the issue of his own fitness for jury service, it
denied the motion to strike him based on his statements that he
could be fair and impartial. But based upon learning the truth
of M.F.’s criminal record and his apparent disinterest during
trial, the court granted the State’s motion. Huff requested that
the court question M.F. to assess his fitness or lack thereof,
but the court declined and found sufficient cause to discharge
                               - 554 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

him from the jury. The court then excused M.F. and seated the
alternate juror.
   The parties then gave their closing arguments, and the court
instructed the jury. Before the jury’s verdict was announced,
Huff moved for mistrial based on the court’s decision to dis-
miss M.F. over his objection. The motion was denied. The jury
found Huff guilty, and the court sentenced him to 12 to 20
years’ imprisonment. Huff timely appeals to this court.
                  ASSIGNMENTS OF ERROR
   Huff assigns that the district court erred in (1) striking M.F.
for cause over Huff’s objection, (2) denying his motion for
mistrial, and (3) imposing an excessive sentence.
                   STANDARD OF REVIEW
   [1,2] The retention or rejection of a juror is a matter of dis-
cretion for the trial court. This rule applies both to the issue
of whether a venireperson should be removed for cause and to
the situation involving the retention of a juror after the com-
mencement of trial. State v. Hilding, 278 Neb. 115, 769 N.W.2d
326 (2009). Thus, the standard of review in a case involving
a motion to dismiss a juror is whether the trial court abused
its discretion. State v. Krutilek, 254 Neb. 11, 573 N.W.2d
771 (1998).
   [3] Decisions regarding motions for mistrial are directed
to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion. State v. Grant, 293 Neb. 163,
876 N.W.2d 639 (2016).
   [4] 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).
                         ANALYSIS
Striking M.F. From Jury.
   Huff argues that the district court erred in striking M.F.
from the jury for cause over Huff’s objection. Although we
                               - 555 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

disagree with the terminology used, we find that the district
court’s decision to remove M.F. from the jury was not an abuse
of discretion.
   [5,6] The district court’s ruling was phrased as sustaining the
State’s motion to strike the juror for cause. In reality, however,
the court discharged M.F. from the jury rather than striking
him for cause. Neb. Rev. Stat. § 29-2006 (Reissue 2008) estab-
lishes when jurors in a criminal trial may be challenged for
cause. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
The bases constituting good cause to challenge a juror under
§ 29-2006 include:
      (1) That he was a member of the grand jury which found
      the indictment; (2) that he has formed or expressed an
      opinion as to the guilt or innocence of the accused; . . .
      (3) in indictments for an offense the punishment whereof
      is capital, that his opinions are such as to preclude him
      from finding the accused guilty of an offense punishable
      with death; (4) that he is a relation within the fifth degree
      . . . to the person on whose complaint the prosecution was
      instituted, or to the defendant; (5) that he has served on
      the petit jury which was sworn in the same cause against
      the same defendant and which jury either rendered a ver-
      dict which was set aside or was discharged, after hearing
      the evidence; (6) that he has served as a juror in a civil
      case brought against the defendant for the same act; (7)
      that he has been in good faith subpoenaed as a witness in
      the case; (8) that he is a habitual drunkard; (9) the same
      challenges shall be allowed in criminal prosecutions that
      are allowed to parties in civil cases.
The challenges allowed in civil cases include challenges that
the juror lacks any one of the qualifications mentioned in
Neb. Rev. Stat. § 25-1601 (Reissue 2016) or that the juror
has requested to be placed on the jury. See Neb. Rev. Stat.
§§ 25-1609 and 25-1636 (Reissue 2016). All challenges for
cause shall be made before the jury is sworn, and not after-
ward. Neb. Rev. Stat. § 29-2007 (Reissue 2016).
                               - 556 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

   In the present case, the district court dismissed M.F. from
the jury because of his apparent disinterest during trial and
dishonesty on the juror questionnaire regarding his criminal
history which was voluminous and included several assault
convictions. The court’s reasons for removing M.F. from the
jury do not come under those bases included in § 29-2006, and
thus, M.F. was not stricken from the jury for cause.
   [7] Neb. Rev. Stat. § 29-2004 (Reissue 2008) sets forth
the procedure for replacing a juror who is discharged dur-
ing trial with an alternate juror. Section 29-2004 refers to the
discharge of a juror who has already been chosen as a juror.
See State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
As the Supreme Court observed in Hilding, § 29-2004 does
not specify the reasons for which a regular juror might be dis-
charged, requiring replacement by an alternate juror. Section
29-2004 merely provides that if, before the final submission of
the cause a regular juror dies or is discharged, the court shall
order the alternate juror to take his or her place in the jury
box. This was the procedure the district court followed in the
present case when discharging M.F. and replacing him with the
alternate juror.
   Huff directs our attention to State v. Myers, 190 Neb. 466,
209 N.W.2d 345 (1973). In Myers, the Nebraska Supreme
Court held that a party who fails to challenge jurors for cause
waives any objection to their selection. The court further held
that if grounds for a challenge for cause arise out of matters
occurring after the jury was sworn, it is the duty of the court
to hear evidence and examine the jurors and determine whether
any juror might be subject to disqualification for cause. Id. A
failure to inquire under such circumstances constitutes such
fundamental unfairness as to jeopardize the constitutional guar-
anty of the right to trial by an impartial jury. Id. Any lowering
of those constitutional standards strikes at the very heart of the
jury system. Id. Relying on Myers, Huff argues that the State
waived any argument that M.F. should be stricken from the
jury because the State had access to M.F.’s criminal history
                               - 557 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

before trial started, from which it could have determined that
he had been untruthful on his questionnaire. Huff also claims
that the district court erred in failing to exercise its duty to
question M.F. to determine whether there was good cause to
discharge him.
   Huff’s reliance on Myers is misplaced, however, because,
as we determined above, despite the court’s terminology, M.F.
was not stricken for cause, but, rather, he was discharged from
the jury. Because there was no good cause under § 29-2006
to strike M.F. from the jury, the State’s objection to M.F. as
a juror was not waived and the duty to question M.F. prior
to discharging him from the jury did not arise in the present
case. The court therefore did not err in failing to question M.F.
before deciding to discharge him from the jury. The question
then becomes whether the court abused its discretion in dis-
missing M.F. We find it did not.
   Nothing occurred during voir dire to raise questions regard-
ing M.F.’s fitness for jury service. It was not until he raised the
issue himself and subjected himself to additional scrutiny that
the court questioned his ability to render a fair and impartial
verdict. After the court initially declined to remove him from
the jury, the State gathered further information on M.F., and
his extensive criminal history and dishonesty were discovered.
M.F. indicated on his juror questionnaire that he had never
been charged with a crime other than a traffic offense, when
in fact, he had not only been charged with numerous crimes,
but had also been convicted of offenses dating back to 1983,
including driving under the influence, violating a protection
order, disturbing the peace, trespassing, stealing money or
goods, and numerous convictions for assault. The trial court
expressed concern not only because of the sheer volume of
M.F.’s criminal record, but because his record includes charges
for violent offenses such as assault and domestic assault,
which are particularly relevant in the case at hand involving
a charge of sexual assault of a victim known to Huff. The
fact that M.F. had failed to disclose any criminal history on
                               - 558 -
          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                           STATE v. HUFF
                       Cite as 24 Neb. App. 551

his questionnaire raised additional concerns. The trial court
also recognized that M.F. raised the issue of his own fitness,
thereby subjecting himself to additional scrutiny by the court
and parties as to whether he was fit for jury service and could
render an impartial and unbiased decision.
   Moreover, although the trial court initially denied the State’s
motion to dismiss M.F. from the jury, a transcript of the collo-
quy between M.F., the court, and the parties was received into
evidence when the State renewed its motion. The State noted
that M.F. did not provide unequivocal responses when ques-
tioned about his ability to render a verdict solely based on the
evidence and law. He was questioned extensively by the court
and parties when he first raised the issue of his own fitness,
and he provided conflicting and unclear answers, repeatedly
declaring himself unfit for jury service. When we examine the
totality of the circumstances, including the fact M.F. raised
an issue regarding his fitness for jury service, his responses
to questioning by the court and parties, his lack of disclosure
on his juror questionnaire, and his criminal history including
offenses similar to the offense with which Huff was charged,
based on the facts of this case, we cannot find that the district
court abused its discretion in dismissing him from the jury and
replacing him with an alternate. We therefore find no merit to
this assignment of error.

Motion for Mistrial.
   Based on our conclusion above, we also reject Huff’s argu-
ment that the district court erred in denying his motion for
mistrial based on the dismissal of M.F. Decisions regarding
motions for mistrial are directed to the discretion of the trial
court, and will be upheld in the absence of an abuse of discre-
tion. State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
Huff claims that M.F. should not have been discharged from
the jury and that because he was, Huff’s motion for mistrial
should have been granted. Finding that the court did not
abuse its discretion in removing M.F. from the jury, we also
                              - 559 -
         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                          STATE v. HUFF
                      Cite as 24 Neb. App. 551

find no abuse of discretion in the decision to deny the motion
for mistrial.
Excessive Sentence.
   Huff argues that the district court abused its discretion in
imposing an excessive sentence. We disagree.
   Huff was convicted of first degree sexual assault, a Class II
felony. See Neb. Rev. Stat. § 28-319 (Reissue 2016). A Class II
felony is punishable by 1 to 50 years’ imprisonment. Neb. Rev.
Stat. § 28-105 (Cum. Supp. 2014). Thus, Huff’s sentence of
12 to 20 years’ imprisonment falls within the statutory limits.
Nevertheless, he argues that his sentence is excessive because
the court failed to meaningfully consider his family obliga-
tions, rehabilitative needs, efforts and desire to change, and
ability to follow the conditions of probation.
   [8] 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 necessar-
ily 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.
   Huff was 31 years old at the time of sentencing. He was
divorced and the father of two teenage children. The record
indicates that he was current on his child support obligations
and maintained a consistent relationship with his children. At
the time of his arrest, he was employed as a line cook at a res-
taurant, earning $13 per hour.
   His criminal history includes convictions for such crimes
as disturbing the peace; stealing money or goods less than
                              - 560 -
         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                          STATE v. HUFF
                      Cite as 24 Neb. App. 551

$300; failure to appear; assault, strike, or cause bodily injury;
refusing to comply with the order of a police officer; urinat-
ing in public; attempted possession of a controlled substance;
third degree domestic assault; driving under the influence;
and numerous traffic offenses. He was charged with assault,
strike, or cause bodily injury on two additional occasions in
2003, but one charge was dismissed and one was amended to
disturbing the peace. In 2010, he received 18 months’ proba-
tion, but the term was later revoked. He was also placed on 18
months’ probation in 2014 for second-offense driving under
the influence.
   The record of the sentencing hearing shows that the court
considered the appropriate factors in determining Huff’s sen-
tence. The court noted that Huff had failed a prior probationary
period, where his probation was revoked and he served jail
time. The court determined that probation was not an appro-
priate option because it would depreciate the seriousness of
the crime and promote disrespect for the law. The court also
observed that this crime was “terrible” for the victim and
Huff’s children and stated that crimes against women and vio-
lent, sexual acts “just simply can’t be tolerated.” Based upon
the record before us, we cannot say that the sentence imposed
by the district court was an abuse of discretion. This assign-
ment of error is therefore meritless.
                        CONCLUSION
   We conclude that the district court did not abuse its discre-
tion in discharging M.F. from the jury, denying Huff’s motion
for mistrial, or imposing a sentence of 12 to 20 years’ impris-
onment. We therefore affirm Huff’s conviction and sentence.
                                                    A ffirmed.
