State v. King
Citation316 Neb. 991
Date Filed2024-06-28
DocketS-23-814
Cited27 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:07 PM CDT
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. KING
Cite as 316 Neb. 991
State of Nebraska, appellee, v.
Nolan M. King, appellant.
___ N.W.3d ___
Filed June 28, 2024. No. S-23-814.
1. Trial: Witnesses: Indictments and Informations. Whether to permit
the names of additional witnesses to be endorsed upon an informa-
tion after the information has been filed is within the discretion of the
trial court.
2. Trial: Witnesses: Proof. In order to predicate error upon a ruling of
the court refusing to permit a witness to testify, or to answer a specific
question, the record must show an offer to prove the facts sought to
be elicited.
3. Trial: Evidence: Juries. A motion in limine is only a procedural step to
prevent prejudicial evidence from reaching the jury. It is not the office
of such motion to obtain a final ruling upon the ultimate admissibility of
the evidence.
4. Trial: Evidence: Proof: Appeal and Error. Because a ruling on a
motion in limine is not a final ruling on the admissibility of evidence
and does not present a question for appellate review, a question con-
cerning the admissibility of evidence which is the subject of a motion
in limine is raised and preserved for appellate review by an appropriate
objection or offer of proof during trial.
5. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, 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, and such
matters are for the finder of fact. 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 essen-
tial elements of the crime beyond a reasonable doubt.
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6. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
Appeal from the District Court for Douglas County, J
Russell Derr, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender,
Alexander D. Sycher, and Tamara T. Mosby for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Nolan M. King appeals his convictions and sentences for
manslaughter and use of a deadly weapon other than a fire-
arm to commit a felony. At Kingās jury trial, the State offered
evidence that King caused fatal head injuries to Rodney Pettit
II during an altercation at a bar. On appeal, King argues that
the district court erred by allowing the testimony of witnesses
the State endorsed 2 weeks prior to trial, by prohibiting King
from questioning the Stateās witnesses about the victimās
toxicology report, and by imposing improper and excessive
sentences. King also argues that the evidence was insufficient
to support his conviction for use of a deadly weapon other
than a firearm to commit a felony. We find no merit to Kingās
arguments and therefore affirm.
I. BACKGROUND
The State presented evidence at trial that on an evening in
February 2022, King and a group of friends went to a bar in
downtown Omaha, Nebraska. Pettit was also at the bar. At
one point during the evening, Pettit walked past Kingās then-
girlfriend, Wynter Knight, and made contact with her as he
passed by. According to trial testimony, King became angry
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once he learned of the interaction between Pettit and Knight.
Sometime later that evening, King encountered Pettit in the
bar, knocked him to the ground, and then continued to attack
him. Pettit was transported to a hospital and died from his
injuries the following day.
The State charged King with second degree murder and use
of a deadly weapon other than a firearm to commit a felony.
Following trial, a jury found King guilty of manslaughter
and use of a deadly weapon other than a firearm to commit a
felony. The district court sentenced King to imprisonment for
19 years 364 days to 20 years on the manslaughter conviction
and for 19 to 20 years on the use of a deadly weapon convic-
tion. The district court ordered the sentences to run consecu-
tively. King filed a timely appeal.
Additional procedural history and evidence, when relevant,
will be discussed in the analysis section below.
II. ASSIGNMENTS OF ERROR
King assigns (1) that the district court erred in permitting
testimony of two witness who were endorsed by the State less
than 30 days before trial; (2) that the district court abused its
discretion by sustaining a motion in limine filed by the State,
which prohibited King from questioning the Stateās witnesses
regarding the victimās toxicology results; (3) that the evidence
was insufficient to support his conviction of use of a deadly
weapon other than a firearm to commit a felony; and (4) that
the sentences imposed by the district court failed to comply
with Neb. Rev. Stat. Ā§ 83-1,110(1)(c) (Supp. 2023) and were
otherwise excessive.
III. ANALYSIS
1. Endorsement of Witnesses
(a) Additional Background
Fourteen days before Kingās trial was scheduled to begin,
the State filed a motion for leave to endorse additional wit-
nesses it had not endorsed when the information was filed. At
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STATE V. KING
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a hearing on the Stateās motion, King objected to the endorse-
ment of the additional witnesses. King argued that because the
additional witnesses were not endorsed when the information
was filed and were not endorsed within 30 days of trial, the
witnesses should not be permitted to testify at trial. The dis-
trict court overruled Kingās objection and sustained the Stateās
motion to endorse. King did not ask for a continuance.
Later at trial, when the State called two of the additional
witnesses to testify, King renewed his objections. The district
court again overruled Kingās objections as to both witnesses
and permitted their testimony. The witnesses testified to their
observations of the altercation between King and Pettit. King
cross-examined the witnesses but again did not move for
a continuance.
(b) Standard of Review
[1] Whether to permit the names of additional witnesses
to be endorsed upon an information after the information has
been filed is within the discretion of the trial court. State v.
Sandoval, 280 Neb. 309,788 N.W.2d 172
(2010). An abuse of discretion occurs when a trial courtās decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v. Molina,271 Neb. 488
,713 N.W.2d 412
(2006).
(c) Analysis
The endorsement of witnesses in criminal trials is gov-
erned by Neb. Rev. Stat. Ā§ 29-1602 (Cum. Supp. 2022), which
provides:
All informations shall be filed in the court having
jurisdiction of the offense specified therein, by the pros-
ecuting attorney of the proper county as informant. The
prosecuting attorney shall subscribe his or her name
thereto and endorse thereon the names of the witnesses
known to him or her at the time of filing. After the
information has been filed, the prosecuting attorney shall
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endorse on the information the names of such other wit-
nesses as shall then be known to him or her as the court
in its discretion may prescribe, except that if a notice of
aggravation is contained in the information as provided
in section 29-1603, the prosecuting attorney may endorse
additional witnesses at any time up to and including the
thirtieth day prior to the trial of guilt.
King argues that the district court erred in permitting the
trial testimony of the two additional witnesses because both
witnesses āwere endorsed by the State less than thirty days
before trial.ā Brief for appellant at 18. Language in some of
our cases suggests that 30 days prior to trial is a significant
milestone in the analysis of whether additional witnesses may
be endorsed. In State v. Smith, 292 Neb. 434, 467-68,873 N.W.2d 169
, 197 (2016), for example, we said that Ā§ 29-1602 āgenerally requires the prosecution to endorse the names of all known witnesses in the information at the time it is filed, but permits the endorsement of additional witnesses up to and including 30 days prior to trial.ā Other language from our case law, however, seems to say that the trial court continues to have discretion to allow for the endorsement of additional witnesses through the pendency of trial. In the same Smith case quoted above, we said that a trial court has discretion to permit additional witnesses to be endorsed āeven after the trial has begun, providing doing so does not prejudice the rights of the defendant.ā292 Neb. at 468
, 873 N.W.2d at 198. See, also, State v. Weathers,304 Neb. 402
,935 N.W.2d 185
(2019).
Section 29-1602 includes a reference to 30 days prior to
trial, but that language only applies to cases in which āa notice
of aggravation is contained in the information.ā The informa-
tion in this case contained no such notice. In cases like this
one, we see nothing in the statutory language that creates a
deadline 30 days prior to trial or, indeed, ascribes any par-
ticular significance to that period of time. Instead, we read
the statute to provide a trial court with continuing discretion
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Cite as 316 Neb. 991to permit the endorsement of additional witnesses. Whether to permit the endorsement of the additional witnesses in this case was thus committed to the district courtās discretion. We find that the district court did not abuse its discretion here. We have said that the purpose of Ā§ 29-1602 is to notify the defendant as to witnesses who may testify and provide an opportunity to investigate them. See State v. Cebuhar,252 Neb. 796
,567 N.W.2d 129
(1997). We have also said that in order to obtain a reversal on the grounds of an additional endorsement of witnesses, the defendant must have requested a continuance at trial and must demonstrate prejudice. Seeid.
See, also, State v. Brandon,240 Neb. 232
,481 N.W.2d 207
(1992). In this case, King asserts that his counsel did not have
adequate time to prepare to cross-examine these witnesses.
But Kingās counsel did cross-examine these witnesses, and
King offers no explanation as to what his counsel could or
would have done differently with more time to prepare. And,
in any event, King did not ask that the case be continued so
that he could have more time to investigate the witnesses. We
thus find no grounds on which to reverse the district courtās
order permitting the endorsement of additional witnesses.
2. Motion in Limine
(a) Additional Background
Prior to trial, the State filed a motion in limine that sought
to preclude King from discussing or adducing evidence of
a toxicology report regarding Pettit. The toxicology report
showed that on the night Pettit was attacked, he had an
elevated blood alcohol concentration and tested positive for
amphetamines and opioid analgesics. The State argued the
toxicology report was irrelevant, unfairly prejudicial, and
amounted to hearsay. The district court, in a written order,
sustained the Stateās motion in limine, stating, in part, that
ā[a]s to the cause of death, there is no evidence that the sub-
stances found in . . . Pettitās system at the time of his death
contributed, in any manner, to his death. . . . The autopsy
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report states the death of . . . Pettit was caused by āblunt force
head injuries.āā
At trial, King did not attempt to question any witnesses
regarding the toxicology report.
(b) Analysis
As noted above, King assigns as error that the district court
abused its discretion by āgranting the Stateās motion in limine
prohibiting King from questioning the Stateās witnesses regard-
ing Pettitās toxicology report at trial.ā
The Nebraska Evidence Rules provide:
(1) Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of
the party is affected, and:
....
(b) In case the ruling is one excluding evidence, the
substance of the evidence was made known to the judge
by offer or was apparent from the context within which
questions were asked.
Neb. Rev. Stat. Ā§ 27-103(Reissue 2016). [2-4] Interpreting Ā§ 27-103(1)(b), we have said that in order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited. See State v. Schreiner,276 Neb. 393
,754 N.W.2d 742
(2008). Such an offer of proof must be made at trial. Seeid.
A motion in limine is only a procedural step to prevent prejudicial evidence from reaching the jury.Id.
It is not the office of such motion to obtain a final ruling upon the ulti- mate admissibility of the evidence.Id.
Because a ruling on a motion in limine is not a final ruling on the admissibility of evidence and does not present a question for appellate review, a question concerning the admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection or offer of proof during trial. Seeid.
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Cite as 316 Neb. 991
Because King made no attempt at trial to question wit-
nesses regarding Pettitās toxicology report, he cannot now
complain that he was prohibited from doing so. This issue was
not preserved for appellate review, so we do not address it.
3. Sufficiency of Evidence
Kingās sufficiency of the evidence challenge is narrow. He
does not contend that the evidence was insufficient to support
his conviction for manslaughter. He argues only that the evi-
dence was insufficient to support his conviction for use of a
deadly weapon to commit a felony. The Stateās theory for that
charge was that King struck Pettit with a bottle. King does not
dispute that a bottle can qualify as a deadly weapon. Instead,
he argues only that there was insufficient evidence that he
actually struck Pettit with a bottle.
(a) Additional Background
At trial, the State offered evidence that after King learned
of the interaction between Pettit and Knight, King grabbed
a pool cue and began to pace. Surveillance footage showed
that King eventually returned the pool cue and then obtained
two beer bottles. King gave one of the bottles to a member
of his group and kept a bottle for himself. King stayed with
members of his group for a short time, then walked away
carrying the bottle. Shortly thereafter, King encountered and
attacked Pettit.
Knight testified at trial. She testified that Pettit ābrushed
pastā her and put his arm around her waist and that King
learned of the interaction. She did not see King attack Pettit,
but emerged from the bathroom to discover a man on the floor.
Knight was rushed outside by her friends and did not learn
details regarding the confrontation that night. Knight testified
that she woke up the next day to text messages from one of
her friends who was at the bar. The friend had seen pictures
on a social media site connecting Kingās group to the attack
on Pettit.
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Knight testified that upon receiving the messages, she talked
to King. According to Knight, King told her that one of
Knightās friends had identified Pettit to him and that King
found Pettit and āhit him over the head with his beer bottle and
then punched him.ā
Four other witnesses testified that they saw King attack
Pettit with a bottle. Kingās counsel attempted to impeach or
otherwise undermine this testimony. A witness who testified
on direct examination that he was walking behind Pettit just
prior to the altercation admitted, after viewing surveillance
footage, that he was actually in front of Pettit. Another wit-
ness testified on cross-examination that she turned toward
the incident after Pettit had already hit the floor. King also
elicited testimony from a police officer that one of the wit-
nesses who testified to seeing King hit Pettit with a bottle
stated in an interview following the incident that she did not
see King use a bottle. Another witness testified that she saw
King hit Pettit with a bottle in the back of his head despite
video surveillance evidence indicating that King and Pettit
met face-to-face.
A security guard who was nearby King and Pettit during
the incident testified that he did not see King use a bottle. In
addition, the video surveillance evidence is inconclusive as to
whether King struck Pettit with a bottle.
Evidence at trial indicated that the bar remained open for
some time after the altercation between King and Pettit. Before
police secured the scene, bar staff cleaned some of the area
where Pettit was attacked. Pieces of a broken beer bottle were
later located on the floor near where Pettit was attacked and in
a dustpan in the bar storage room. Kingās fingerprints were not
recovered from the evidence collected at the scene.
After Pettit died, an autopsy was performed to determine
the cause of death. The forensic pathologist who performed
the autopsy testified at trial. The autopsy revealed that Pettit
had several blunt force injuries to his head and face. The
forensic pathologist testified that Pettit sustained āseveralā
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nonsurvivable injuries and that the cause of death was blunt
force head injuries. The forensic pathologist testified that all
of Pettitās external injuries were consistent with getting struck
by a fist or an object like a bottle.
(b) Standard of Review
[5] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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,
and such matters are for the finder of fact. State v. Lorello,
314 Neb. 385,991 N.W.2d 11
(2023). 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.Id.
(c) Analysis
King argues there was insufficient evidence he struck Pettit
with a bottle. King points out that the security guard testi-
fied that he did not see King use a bottle and that there was
no DNA or fingerprint evidence suggesting he used a bottle.
Additionally, King argues that the testimony of the witnesses
who claimed to see a bottle was inconsistent or contradicted
by other evidence. As we will explain, Kingās argument is
without merit.
Kingās reliance on the security guardās testimony and the
absence of DNA or fingerprint evidence is unavailing. We
recently rejected the notion that a defendant can establish that
evidence to support a conviction was insufficient by point-
ing to the absence of certain types of evidence. See id.As we explained, our standard of review directs us to evaluate the evidence that was actually before the fact finder rather than ponder āpotentially incriminating facts that were lacking.āId. at 401
,991 N.W.2d at 22
.
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Cite as 316 Neb. 991As for the evidence that was actually presented, we find that it, viewed in the light most favorable to the prosecu- tion, would allow a rational jury to conclude that King struck Pettit with a bottle. As we have discussed, the record included evidence that King was holding a bottle moments before his encounter with Pettit and that Pettitās injuries were consistent with being struck in the head with a bottle. On top of these facts, Knight testified that King admitted to striking Pettit with a bottle. Although other evidence might have also sup- ported the Stateās theory that King struck Pettit with a bottle, we find that these facts alone would allow a rational jury to conclude that King struck Pettit with a bottle. Kingās argu- ment that we cannot consider the testimony of the witnesses who claimed to see King strike Pettit with a bottle appears to invite us to reweigh evidence and pass on witness credibility contrary to our standard of review. SeeLorello, supra.
Given
our conclusion that the conviction was amply supported by
other evidence, however, we need not make further comment
on that argument.
4. Sentencing
(a) Additional Background
At Kingās sentencing hearing, the district court stated that
it had received and read the presentence investigation report
and victim impact letters. Kingās counsel read aloud a note
from King and offered arguments concerning various mitigat-
ing factors for the court to consider in its sentencing. The
district court ultimately sentenced King to imprisonment for
consecutive terms of 19 years 364 days to 20 years and of 19
to 20 years.
(b) Standard of Review
[6] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. State v. Johnson, 308 Neb. 331,953 N.W.2d 772
(2021).
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(c) Analysis
King challenges his sentences in two ways. He first argues
that his sentences do not comply with recent amendments to
Ā§ 83-1,110. He also argues that his sentences were otherwise
excessive.
(i) Ā§ 83-1,110
King argues that recent amendments to Ā§ 83-1,110 required
the district court to sentence King āto an indeterminate sen-
tence in which King would become parole eligible after King
served 80 percent of the time until Kingās mandatory discharge
date.ā Brief for appellant at 29.
In State v. Evans, ante p. 943, ___ N.W.3d ___ (2024), we
rejected an identical argument. In Evans, we explained that the
recent amendments to Ā§ 83-1,110 affect a defendantās parole
eligibility calculations but do not alter the permissible sentenc-
ing range. For the same reasons, we also reject Kingās argu-
ment that his sentences were inconsistent with Ā§ 83-1,110.
(ii) Excessive Sentences
Lastly, King argues that the district court abused its discre-
tion by imposing excessive sentences. King does not dispute
that he was sentenced within the statutory limits set forth in
Neb. Rev. Stat. Ā§ 28-105(Cum. Supp. 2022). He instead argues the district court failed to adequately consider certain mitigat- ing factors when sentencing him. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a 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. Stack,307 Neb. 773
,950 N.W.2d 611
(2020). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are the defendantās
(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,
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Cite as 316 Neb. 991as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.Id.
The appropriateness of a sentence is necessarily a subjective judg- ment and includes the sentencing judgeās observation of the defendantās demeanor and attitude and all the facts and cir- cumstances surrounding the defendantās life.Id.
King argues that the district court failed to adequately con- sider the relevant sentencing factors enumerated above and based its sentences primarily on the nature of the offenses. In so arguing, King highlights certain mitigating factors in the presentence investigation report, including his documented mental health issues, lack of criminal history, participation in rehabilitative programs with the Department of Correctional Services, assessments that show he is at a low risk to reof- fend, and his acceptance of responsibility for Pettitās death. Based on the record, we find no abuse of discretion by the district court. There is nothing in the record to suggest that the district court did not consider the mitigating factors King identifies. King asserts that if the district court had considered the miti- gating information he identifies, it would have imposed sub- stantially shorter sentences. In so arguing, however, King is essentially urging that the district court should have weighed the relevant sentencing information differently. We recall, however, that it is not this courtās function to conduct a de novo review of the record to determine what sentence we would impose, see State v. Horne,315 Neb. 766
,1 N.W.3d 457
(2024), and that the district court was also obligated to
consider the nature of Kingās crimes. With those consider-
ations in mind, we cannot say that the district court abused its
discretion in sentencing King.
IV. CONCLUSION
We find no merit to Kingās arguments and therefore affirm
his convictions and sentences.
Affirmed.