                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. VALERIANO


  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.

                              CRUZ G. VALERIANO, JR., APPELLANT.


                           Filed November 21, 2017.      No. A-17-211.


       Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge.
Affirmed.
       Leonard G. Tabor for appellant.
       Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.



       MOORE, Chief Judge, and INBODY and BISHOP, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Cruz G. Valeriano, Jr., was convicted of assault by a confined person after he fought with
a fellow inmate at the Scotts Bluff County jail. Valeriano was sentenced to incarceration for 24 to
36 months. On appeal, Valeriano assigns as error that there was insufficient evidence as a matter
of law to sustain his conviction and that the district court erred in refusing to give a self-defense
instruction to the jury and in imposing an excessive sentence. We affirm.
                                         BACKGROUND
       On May 18, 2016, officers with the Scotts Bluff County jail responded to an assault
involving two inmates in the Center’s F-Pod. They found inmates Valeriano and Timothy Trujillo




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had both sustained injuries in an apparent altercation. After investigating the circumstances of the
injuries, the State charged Valeriano with assault by a confined person, a Class IIIA felony.
        At Valeriano’s trial, the State presented the testimony of five witnesses, each of whom
worked for the jail. Collectively, their testimony confirmed that both Trujillo and Valeriano were
jail inmates and that the jail employees responded to the altercation after an inmate pressed an
emergency button inside of the F-Pod. The State’s witnesses testified about the extent of Trujillo’s
injuries. The State also offered a DVD of soundless surveillance footage of the incident.
        The footage begins by showing Trujillo, Valeriano, and several other inmates sitting in the
F-Pod common area. Trujillo approached a table where Valeriano sat by himself. While at
Valeriano’s table, Trujillo waved his arms at Valeriano. Trujillo then left Valeriano’s table, went
up the pod’s stairs, and entered his cell. After a few moments, Valeriano stood and went up the
stairs. When Valeriano reached the top landing, he removed his clothing as Trujillo opened his cell
door to allow Valeriano to enter his cell.
        After Valeriano and Trujillo shut the cell door, the other inmates left the F-Pod common
area, went up the stairs, and looked into Trujillo’s cell through a window in the door. One of the
inmates opened the door, revealing Valeriano standing above what appeared to be Trujillo on the
floor. Valeriano repeatedly stomped at Trujillo with his right foot. The inmate closed the door and
proceeded to the common area. Soon thereafter, Valeriano exited Trujillo’s room in his underwear
and walked across the landing out of the surveillance camera’s range while several of the jail
employees entered the F-Pod. The video concludes with the jail employees hauling Trujillo from
the F-Pod.
        At the conclusion of the evidence, Valeriano asked the court to tender a jury instruction on
the issue of self-defense. He argued that because he was injured in the altercation, evidence existed
to support a theory of self-defense. The court denied the jury instruction, reasoning that because
Valeriano unjustifiably placed himself in harm’s way when he entered Trujillo’s cell, the evidence
did not support a self-defense instruction. The jury unanimously found Valeriano guilty of assault
by a confined person. The court sentenced him to 24 to 36 months’ imprisonment. Valeriano
appeals.
                                  ASSIGNMENTS OF ERROR
        Valeriano assigns the district court erred in (1) finding sufficient evidence as a matter of
law to convict him, (2) refusing to give a self-defense instruction to the jury, and (3) imposing an
excessive sentence.
                                    STANDARD OF REVIEW
        In reviewing a criminal conviction for a sufficiency of the evidence claim, the relevant
question for an appellate court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
        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 evidence, and (3) the appellant was prejudiced by




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the court’s refusal to give the tendered instruction. State v. Scherbarth, 24 Neb. App. 897, 900
N.W.2d 213 (2017).
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017). A
judicial “abuse of discretion” exists when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and denying just results in matters
submitted for disposition. Id.
                                               ANALYSIS
Sufficiency of Evidence.
         Valeriano asserts there was insufficient evidence as a matter of law to sustain his conviction
for assault of a confined person. As discussed below, because appellate courts do not reweigh
evidence and there was sufficient evidence in this case to support the conviction, we find this
assigned error to be without merit.
         In reviewing a sufficiency of the evidence claim, regardless of whether the evidence is
direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.
The finder of fact determines those matters. State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454
(2017). Instead, in the absence of prejudicial error, an appellate court will affirm a conviction if
the evidence admitted at trial, viewed most favorably to the State, is sufficient to support the
conviction. Id.
         The assault by a confined person statute provides, in relevant part, “[a]ny person (a)(i) who
is legally confined in a jail or an adult correctional or penal institution . . . and (b) who intentionally,
knowingly, or recklessly causes bodily injury to another person shall be guilty of a Class IIIA
felony.” Neb. Rev. Stat. § 28-932(1)(Reissue 2016). Viewing the evidence in a light most favorable
to the prosecution, we find the State provided sufficient evidence to prove each of the statutory
elements. Thus, a rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
         The State proved--and Valeriano does not contest--that Valeriano was confined in jail at
the time of the assault. Valeriano limits his arguments to the second element of assault by a
confined person: whether he caused bodily injury to another. He asserts the State’s circumstantial
evidence that he assaulted another inmate is insufficient to convict him. We disagree.
Circumstantial evidence is adequate to support conviction if the evidence, taken as whole,
establishes guilt beyond reasonable doubt. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753
(2003); State v. Russell, 243 Neb. 106, 497 N.W.2d 393 (1993). A fact proved only by
circumstantial evidence in a criminal prosecution is nonetheless a proven fact. State v. Olbricht,
294 Neb. 974, 885 N.W.2d 699 (2016). It is not inherently less probative than direct evidence. Id.
         The State presented both a surveillance video and the testimony of several witnesses to
support Valeriano’s assault of Trujillo. The surveillance video recorded Valeriano following
Trujillo into his cell. The video further shows Valeriano stomping with his right foot at what
appeared to be Trujillo lying on the floor. One jail employee testified that after she watched
Valeriano walk out of the cell, she saw Trujillo in the same cell washing blood from his obvious



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injuries. Another jail employee testified that when Valeriano left the cell, Trujillo had an injury to
his left eyelid and a laceration on his left cheekbone that medical professionals later stitched shut.
Given this evidence, we find a rational trier of fact could have concluded beyond a reasonable
doubt that Valeriano intentionally, knowingly, or recklessly injured Trujillo. See State v. Alford,
278 Neb. 818, 774 N.W.2d 394 (2009) (finding circumstantial evidence and the rational inferences
were sufficient to convict a criminal defendant of assault by a confined person).
Jury Instruction.
         Next, Valeriano argues the district court erred in failing to give a self-defense instruction
to the jury. A trial court must instruct the jury on the issue of self-defense when any evidence raises
a legally cognizable claim of self-defense. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263
(2006). But if the trial evidence does not support a claim of self-defense, the court should not
instruct the jury on it. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999). Here, the evidence
did not warrant an instruction on the issue of self-defense. As a result, the district court did not err
when it refused to give Valeriano’s proposed instruction to the jury.
         Generally, the use of force upon another person is justifiable when the actor believes the
force is immediately necessary for the purpose of protecting himself or herself against the use of
unlawful force by the other person on the present occasion. Neb. Rev. Stat. § 28-1409 (Reissue
2016). To successfully assert a claim of self-defense, one must have a reasonable and good faith
belief in the necessity of using force. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012). If a
defendant has unjustifiably placed himself or herself in harm’s way, a court may properly find that
such facts do not support a lawful claim of self-defense. See State v. Urbano, supra.
         For example, in State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997), a bar patron
accused the defendant of striking him while they drank together at a local bar. At trial, a witness
testified that before the incident, she saw the defendant and the bar patron speaking together. She
further testified the bar patron made “an aggressive provocative move” upward toward the
defendant’s throat with a beer bottle in his hand. She related that in response, the defendant struck
the bar patron. Despite the witness’ testimony, the district court refused to tender an instruction
concerning self-defense. On appeal, the Nebraska Supreme Court found the district court’s failure
to tender an instruction on self-defense was reversible error. Id. The Supreme Court reasoned that
because the defendant presented evidence that supported a self-defense theory, Nebraska law
required the district court to give an instruction on the issue of self-defense. Id.
         However, in State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998), the Nebraska
Supreme Court affirmed a trial court’s refusal to tender a jury instruction on self-defense. Id. The
defendant in Marshall lived with a woman. The woman’s former beaux and a passenger drove to
the defendant’s house to retrieve a necklace the former beaux gave to the woman during their
relationship. After retrieving the necklace, the former beaux sat in his car with the door ajar,
preparing to drive away. While the former beaux and his passenger waited in the driveway, the
defendant approached their car and verbally threatened them. In response, both the former beaux
and his passenger reached under their seats for firearms and moved to exit their vehicle. The
defendant, who was also armed, shot the former beaux and his passenger. The district court rejected
the defendant’s request to tender a jury instruction on self-defense. On appeal, the defendant



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argued the district court’s refusal to instruct the jury on the issue of self-defense was reversible
error. He claimed that because the former beaux and his passenger threatened him with deadly
force, the evidence raised a legally cognizable claim of self-defense. The Nebraska Supreme Court
rejected his argument. The Court reasoned that the criminal defendant unjustifiably placed himself
in harm’s way when he approached the former beaux’s vehicle, and therefore, the facts did not
support a self-defense theory. Id.
        We find the present case is more similar to Marshall than it is Kinser. Unlike Kinser, here
the record contains no evidence that Trujillo physically threatened Valeriano such that immediate
use of force against Trujillo was necessary. While Trujillo may have encouraged Valeriano to fight
him in his cell, Valeriano could have rejected the challenge. Even if we accept Valeriano’s claim
that he only injured Trujillo because Trujillo threatened him while in the cell, Valeriano entered
Trujillo’s cell of his own volition, apparently knowing Trujillo would fight him. As in Marshall,
when Valeriano entered Trujillo’s cell, he unjustifiably placed himself in harm’s way. Therefore,
the district court did not err in denying Valeriano’s request for a jury instruction on self-defense.
Appropriateness of Sentence.
        Last, Valeriano argues that the district court abused its discretion by imposing an excessive
sentence. The court sentenced him to imprisonment for 24 to 36 months, which falls within the
statutory range. See Neb. Rev. Stat. § 28-105 (Reissue 2016). In reviewing a sentence imposed
within the statutory limits, we consider whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any legal principles in determining the
sentence to be imposed. State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
        When imposing a sentence, the sentencing court is to 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 amount of violence involved in the commission of the crime. Id.
But the sentencing court is not limited to any mathematically applied set of factors. State v.
Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017). Instead, 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. A sentencing court is accorded very wide discretion in determining an appropriate
sentence. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
        The court considered the facts presented in the presentence investigation report (PSR). The
PSR revealed Valeriano’s criminal history included seven convictions in Wyoming and Nebraska
for various violent and non-violent offenses. The violent crimes included two convictions for
battery and two convictions for interference with a peace officer. At the time of the present assault,
he was in jail pending trial on charges of terroristic threats and felon in possession of a firearm.
Further, the PSR showed that Valeriano has a high risk of recidivism for violent behavior and falls
within the maximum risk range for the alcohol abuse, drug abuse, and anti-social behavior
categories. Given the wide discretion trial courts have regarding sentencing, we cannot say the
trial court abused its discretion.




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                                        CONCLUSION
        For the above reasons, we find that there was sufficient evidence as a matter of law to
sustain Valeriano’s conviction. The district court did not err in refusing to give a self-defense
instruction to the jury or abuse its discretion by imposing an excessive sentence.
                                                                                      AFFIRMED.




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