                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. MIGUEL


  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.

                                   ISAIS D. MIGUEL, APPELLANT.


                             Filed February 20, 2018.    No. A-17-420.


       Appeal from the District Court for Hall County: TERESA K. LUTHER, Judge. Affirmed.
       Mark Porto, of Porto Law Office, for appellant.
       Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.


       MOORE, Chief Judge, and PIRTLE, Judge, and INBODY, Judge, Retired.
       INBODY, Judge, Retired.
                                         INTRODUCTION
       Isais D. Miguel appeals his conviction for robbery in violation of Neb. Rev. Stat.
§ 28-324(1) (Reissue 2016), first degree assault in violation of Neb. Rev. Stat. 28-308(1) (Reissue
2016), and two counts of use of a deadly weapon to commit a felony in violation of Neb. Rev. Stat.
§ 28-1205(1)(a)(b) (Reissue 2016). He claims the evidence was insufficient to support his
convictions and his sentences were excessive. For the reasons set forth herein, we affirm.
                                    STATEMENT OF FACTS
        On February 26, 2016, Victor Schoenheit was traveling from California to Chicago by bus.
At a truck stop in Nebraska, Schoenheit left the bus at the direction of the driver for attempting to
bring alcohol on the bus against bus rules. Schoenheit is a self-admitted alcoholic and, at that time,
was engaging in what he described as “maintenance drinking” to prevent illness and other
symptoms of alcohol withdrawal. After failing in his attempts to get a ride toward his destination



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from the truck stop, a police officer took Schoenheit to a bus stop in Grand Island, Nebraska, where
Schoenheit could obtain a ride on another bus to complete his journey. Schoenheit travelled with
a guitar case containing a Martin guitar he valued around $600 and a garbage bag containing some
clothes and liquor. At the bus stop, Schoenheit utilized a bench and, at one point, entered into the
Infinity Lounge, a nearby hotel bar located in Boarders Inn and Suites, to get a soda to drink with
his alcohol.
        Later in the evening, Schoenheit was on the bench by the bus stop when he was approached
by Miguel who struck up a conversation and asked Schoenheit questions about his guitar including
about its manufacturer, its cost, and if Schoenheit would take it out of its case. These questions
made Schoenheit nervous and he refused to show Miguel the guitar. Miguel asked Schoenheit to
go into the Infinity Lounge and offered to buy him a drink and play some pool while Schoenheit
waited for the bus and Schoenheit eventually agreed. Schoenheit stored the garbage bag with his
clothes and alcohol outside and took his guitar inside the bar. There, Schoenheit and Miguel
ordered some alcoholic drinks and played pool. According to Schoenheit, he had two to three
drinks at the bar and kept track of his guitar throughout the evening. After a few drinks, the
bartender, Jeanne Kenney, stopped serving Miguel alcohol due to his apparent level of
intoxication.
        Schoenheit left the bar shortly after midnight on February 27, 2017, carrying his guitar
case, and Miguel followed him out approximately 30 seconds later. Once outside, Schoenheit
leaned against the hotel wall and planned to drink more of the alcohol he had stored in the garbage
bag containing his clothes. Miguel approached Schoenheit and began to ask him again about his
guitar. Schoenheit felt nervous from this interaction, told Miguel he was going to call it a night,
and began to turn to go back toward the bus stop. Miguel then lunged at Schoenheit, pushing his
hand toward Schoenheit’s neck. Feeling a shocking sensation on his neck, Schoenheit fell back
and put his hand to his neck and discovered it was covered in blood. He looked up at Miguel who
was now standing over Schoenheit and observed a 2½- to 3-inch pocket knife with what appeared
to be a red handle. At that point, Miguel grabbed the guitar but Schoenheit also grabbed it to keep
Miguel from taking it. Miguel again lunged with the knife toward Schoenheit’s neck but instead
struck Schoenheit’s cheek. Schoenheit let go of the guitar, and Miguel took it and began attempting
to run away.
        Miguel had difficulty running as he carried the guitar because of its weight and Schoenheit
followed Miguel at a distance, not wanting to get close enough that Miguel would try to use his
knife again but wanting to reclaim his guitar. As Schoenheit followed Miguel, the parties passed
close to a nearby highway. Schoenheit yelled and waved his hands as cars travelled along the road
attempting to flag down help. Although none of the vehicles stopped, Miguel dropped the guitar
and ran away without it. Schoenheit picked up the guitar and returned to the Infinity Lounge, which
the parties had left approximately 13 minutes earlier. Schoenheit indicated to the bartender that he
had been stabbed. Individuals present at the bar, along with hotel staff from Boarders Inn and
Suites, called an ambulance and emergency personnel came to assist Schoenheit whose shirt was
now covered in blood.
        Schoenheit was transported to a hospital where he underwent surgery and was treated for
a 1.5- to 2-centimeter wound in his neck that was 2 to 3 inches deep and cuts on his face. He
additionally had a blood draw which revealed a blood alcohol content of .242, and the surgeon


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who treated Schoenheit believed him to be intoxicated but found him to be functioning and
responding clearly to questions.
         Later that morning officers went to Miguel’s residence, questioned Miguel’s roommate
Jose Elizadale, and obtained clothing Miguel was wearing the previous night. Officer Jesse Parker,
a police officer who speaks Spanish, talked to Miguel’s roommate in a combination of Spanish
and English and was told by the roommate that Miguel had come home between 1 and 1:30 a.m.
and that Miguel had been upset and crying because of Miguel’s brother’s recent suicide. However,
at trial, the roommate testified that he did not tell the officer Miguel was crying but instead told
him only that Miguel had been upset previously because of his brother’s death. Officers did not
recover a jacket Miguel was believed to be wearing the previous night nor a pocket knife with a
red handle from Miguel’s residence. Miguel’s roommate denied that either he or Miguel owned
such a pocket knife.
         DNA tests were later conducted on a DNA sample from Miguel’s hands, a spot on Miguel’s
blue jeans, and Schoenheit’s guitar handle. The DNA test of the blue jeans was inconclusive as to
the presence of Schoenheit’s DNA, the test of Schoenheit’s guitar handle was inconclusive as to
whether Miguel’s DNA profile was present, Miguel’s right hand sample contained a mixture that
matched the full DNA profile of both Miguel and Schoenheit, and Miguel’s left hand sample
generated a profile that exclusively matched Miguel’s DNA. Miguel is left handed.
         Pursuant to these events, the State charged Miguel with robbery, first degree assault,
attempted second degree murder, and three counts of use of a deadly weapon to commit a felony.
During a bench trial, the district court received testimony from Jeanne Kenney, Casey Williams,
Schoenheit, Dr. Steven Schneider, Pamela Shay, Officer Adam Paitz, Sergeant Jason Allen,
Investigator Justin Slizoski, Officer Christopher Marcello, Officer Jesse Parker, Jose Elizadale,
Pamela Zitterkopf, Shannon Bishop, and Miguel. The court additionally received evidence
including video and photos from Infinity Lounge, photos of Schoenheit’s wounds, Schoenheit’s
shirt, and Miguel’s clothing which underwent DNA testing. The court found Miguel guilty of
robbery, first degree assault, and two counts of use of a deadly weapon to commit a felony. Miguel
was sentenced to 14 to 20 years’ incarceration each for robbery and first degree assault to run
concurrently and 2 to 3 years’ incarceration for each of the two counts of use of a deadly weapon
to commit a felony to run consecutively to the robbery and assault convictions as well as each
other. The court dismissed the remaining counts.
                                   ASSIGNMENTS OF ERROR
       Miguel assigns, restated, that the district court erred (1) in determining there was sufficient
evidence to support the conviction and (2) in imposing an excessive sentence.
                                    STANDARD OF REVIEW
       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


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most favorably to the State, is sufficient to support the conviction. State v. Duncan, 293 Neb. 359,
878 N.W.2d 363 (2016). Where a sentence imposed within the statutory limits is alleged on appeal
to be excessive, the appellate court must determine whether the sentencing court abused its
discretion in considering and applying the relevant factors as well as any applicable legal principles
in determining the sentence to be imposed. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
                                            ANALYSIS
                                    SUFFICIENCY OF EVIDENCE
        Miguel contends there was insufficient evidence to support his conviction for robbery, first
degree assault, and two counts of use of a deadly weapon to commit a felony. Specifically, Miguel
argues Schoenheit’s identification of Miguel as the perpetrator of the attack and testimony
concerning the method of the attack is unreliable due to Schoenheit’s level of intoxication on the
night of the incident, inconsistencies in his accounts of the assault, and a lack of physical evidence
to support his account. Miguel contends that the district court erred in finding him guilty because
Schoenheit’s testimony was unreliable and because the other evidence presented failed to establish,
beyond a reasonable doubt, Miguel was the perpetrator of a knife attack.
        Miguel was charged and convicted of robbery under § 28-324(1), which provides: “A
person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in
fear, takes from the person of another any money or personal property of any value whatever.”
Miguel was also convicted of first degree assault under § 28-308(1), which states: “A person
commits the offense of assault in the first degree if he or she intentionally or knowingly causes
serious bodily injury to another person.” Finally, Miguel was convicted of two counts of use of a
deadly weapon to commit a felony in violation of § 28-1205(1), which provides in relevant part:
        (a) Any person who uses . . . a knife . . . or any other deadly weapon to commit any felony
        which may be prosecuted in a court of this state commits the offense of use of a deadly
        weapon to commit a felony.
                (b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II
        felony.

        Miguel’s primary contention is that Schoenheit’s testimony was the only direct evidence
establishing Miguel as the perpetrator of the attack and that it was not credible. However, as stated
above, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Duncan, 293 Neb. 359, 878 N.W.2d
363 (2016). Here, Schoenheit testified that he and Miguel left the Infinity Lounge at relatively the
same time, that Miguel subsequently approached Schoenheit and began to question him about his
guitar, that Miguel lunged at Schoenheit and shoved at his neck, that Schoenheit felt a shocking
feeling and brought his hand to his neck and found he was bleeding, that Schoenheit saw Miguel
standing over him with what appeared to be a pocket knife with a red handle, that Miguel grabbed
the guitar and Schoenheit did also to try to keep Miguel from taking it, that Miguel again lunged
with the knife for Schoenheit’s neck but instead cut Schoenheit’s face, that Miguel took off with
Schoenheit’s guitar and Schoenheit followed him, and that Miguel eventually dropped the guitar
and ran away. This account is supported by video and pictures from the bar and hotel which show
Schoenheit and Miguel left the bar within 30 seconds of each other; the bartender who testified


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that Miguel and Schoenheit had been playing pool and drinking, that she cut Miguel off from
drinking because his behavior was deteriorating, that Miguel and Schoenheit left the bar around
the same time, and that Schoenheit returned shortly after and was bleeding and severely wounded;
the treating surgeon who testified concerning the resulting wounds to Schoenheit’s neck and face;
and the testimony of the laboratory technician determining that Schoenheit’s DNA was found on
Miguel’s person. In making its determination, the court also heard and considered testimony about
a blood sample taken from Schoenheit while at the hospital which found his blood alcohol content
to be at a level of .242, testimony from the treating surgeon describing that he believed Schoenheit
intoxicated but supplying coherent answers during treatment, and the cross-examination of
Schoenheit and other witnesses concerning testimony given on direct examination and previous
statements made concerning the identity of Schoenheit’s attacker and the manner in which he was
attacked. Because we do not pass on the credibility of witnesses and because there was sufficient
evidentiary support for the court’s finding of credibility, the evidence when viewed in the light
most favorable to the State supports the convictions. Thus, the district court did not err.
                                       EXCESSIVE SENTENCE
         Miguel next assigns the district court erred in imposing excessive sentences. The district
court sentenced Miguel to 14 to 20 years’ incarceration for each conviction of robbery and first
degree assault to run concurrently. Both robbery and first degree assault are Class II felonies
punishable by 1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 2016) and
§§ 28-324 and 28-308. The district court further sentenced Miguel to 2 to 3 years’ incarceration
for each of the two counts of use of a deadly weapon to commit a felony to run consecutively to
the robbery and assault convictions as well as each other. Use of a deadly weapon to commit a
felony is a Class II felony and is punishable by 1 to 50 years’ imprisonment. See §§ 28-105 and
28-1205(1)(a)(b). Section 28-1205(3) provides a requirement that any convictions under § 28-1205
must run consecutive to any other sentence imposed. Thus, the district court’s imposition of these
terms of imprisonment for all four counts were within the statutory limits.
         Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
When imposing a sentence, the 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 offense. Id. The
sentencing court is not limited to any mathematically applied set of factors. 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.
         During the sentencing proceedings, the district court received argument from Miguel and
his trial counsel and reviewed and considered the presentence investigation report. Miguel has an
extensive criminal history including convictions for theft, driving under the influence, malicious
mischief-domestic violence, assault, attempting to elude, driving while license suspended or


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revoked, conspiracy to commit assault-second offense with sexual motivation, assault-domestic
violence, interference with reporting of domestic violence, violating sex offender registry, willful
reckless driving, operating motor vehicle to avoid arrest, attempted assault by confined person,
leaving accident-failure to furnish information, and a Sexual Offender Attempted Registration Act
violation. The presentence investigation report found Miguel is at a high risk to reoffend and is in
the high risk range in the criminal history and companions categories. There is no indication in the
record that the court considered any inappropriate factors in making its determination. The court
appropriately considered Miguel’s previous criminal record and the arguments made by Miguel
and his counsel and issued a sentence within the statutory range. Thus, the district court did not
abuse its discretion in imposing the sentence.
                                         CONCLUSION
        The district court did not err in determining there was sufficient evidence to support the
jury’s verdict and did not abuse its discretion and impose excessive sentences.
                                                                                       AFFIRMED.




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