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State of Nebraska v. David G. Castillas

February 8, 2013

STATE OF NEBRASKA, APPELLEE,
v.
DAVID G. CASTILLAS, APPELLANT.



Appeal from the District Court for Douglas County: Gary b. raNdall, Judge.

The opinion of the court was delivered by: WriGht, J.

Nebraska advaNce sheets 174 285 NEBRASKA REPORTS

Cite as

NEBRASKA REPORTS

___ N.W.2d ___

1. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403 (Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court's decision will not be reversed absent an abuse of discretion.

2. Criminal Law: Evidence: Appeal and Error. In reviewing 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; 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 essential elements of the crime beyond a reasonable doubt.

3. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

5. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

6. Rules of Evidence. The fact that evidence is prejudicial is not enough to require exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party; it is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under § 27-403.

7. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

8. Motions to Dismiss: Evidence: Waiver: Appeal and Error. When a court overrules a defendant's motion to dismiss at the close of the State's case in chief and the defendant proceeds to trial and introduces evidence, the defendant waives the appellate right to challenge the trial court's overruling of the motion to dismiss.

9. Sentences. It is possible, in limited circumstances, to correct an inadvertent mis-pronouncement of a valid sentence.

10. ____. When a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of court at which the sentence was imposed.

11. ____. If there is a conflict between the court's sentence and its truth in sentencing advisement, the statements of the minimum and maximum limits control.

Affirmed.

heavicaN, c.J., WriGht, coNNolly, stephaN, MccorMack, and Miller-lerMaN, JJ.

NATURE OF CASE

David G. Castillas was convicted of two counts of discharging a firearm at a dwelling while in or near a motor vehicle, one count of second degree assault, and three counts of use of a deadly weapon to commit a felony. He was sentenced to 5 to 20 years in prison on each conviction of discharging a firearm, 5 to 10 years in prison on the conviction of second degree assault, and 5 to 10 years in prison on each conviction of use of a weapon to commit a felony. All sentences were to be served consecutively. Castillas appeals his convictions and sentences.

SCOPE OF REVIEW

[1] It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403 (Reissue 2008) and 27-404(2) (Cum. Supp. 2012), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).

[2] In reviewing 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; 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 essential elements of the crime beyond a reasonable doubt. State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012).

[3] Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).

[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. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

FACTS backGrouNd

On June 5, 2010, a driveby shooting occurred at the home of Donald Jones in Omaha, Nebraska. On June 11, another driveby shooting occurred at the home of William Harris, who lived with his mother at the home, also located in Omaha. During the second shooting, Harris' mother sustained a bullet wound to her left arm.

Castillas, Travis Davis, Tiffany Fitzgerald, and Brandy Beckwith were charged in connection with the shootings. On April 26, 2011, the State was granted leave to file additional charges against Castillas. It filed an amended information charging Castillas with two counts of discharging a firearm at a dwelling while in or near a motor vehicle, one count of second degree assault, and three counts of use of a deadly weapon to commit a felony.

Castillas filed a motion in limine to exclude evidence of or testimony regarding an incident following the shootings, during which Castillas allegedly possessed a firearm and brandished it at Donald Betts, a witness for the State. Castillas also moved to exclude any photographs of him handling a firearm. Castillas alleged that evidence on this issue would not be reliable or relevant, that such evidence would be excludable under § 27-404(2), and that any probative value under § 27-403 would be outweighed by unfair prejudice. He also claimed the evidence would be improper propensity evidence prohibited under § 27-404. Both motions were overruled.

Jury trial

Castillas' trial commenced on May 4, 2011, in Douglas County District Court. The State called Davis, Fitzgerald, and Beckwith. All three testified that on June 5, 2010, they drove with Castillas to Jones' house. They testified that Castillas and Davis shot at the residence multiple times with firearms. They also testified that on the night of the second shooting, all four individuals, along with a person named "Lars," drove to Harris' house and that Castillas and Davis each fired at the residence.

On the evening of June 4, 2010, Castillas and Davis were "partying" with Fitzgerald and Beckwith. The four of them were taking photographs of themselves holding guns, to "look cool." One of the guns was a .45-caliber pistol that belonged to Davis, and the other was a .22-caliber rifle that belonged to Fitzgerald's father. Fitzgerald recalled that the photographs marked as exhibits 93, 94, 95, and 97 were taken that specific night, because she recognized the black dresses she and Beckwith were wearing.

Davis testified that Castillas and Fitzgerald argued about Betts on the night of the first shooting. Betts had been dating Fitzgerald, who was Castillas' girlfriend, and Castillas wanted revenge. Betts was the son of Jones, and he occasionally lived with Jones. Davis had never met Betts, but he became upset with Betts due to rumors that Betts had fired a weapon at Davis' car.

Sometime after midnight on June 5, 2010, Castillas accused Fitzgerald of continuing to talk to Betts. Castillas took the rifle, Davis took his pistol, and the four got into Beckwith's car. Beckwith drove, with Davis in the front passenger seat, Fitzgerald in the rear passenger seat, and Castillas in the rear driver's-side seat. Castillas gave Beckwith directions to Jones' house. As they drove past the house, Castillas and Davis both fired at it. Davis sat on "the [front passenger] window sill" and fired his pistol across the roof of the car, and Castillas fired the rifle out the back window. Davis testified he fired at least five or six shots and heard Castillas fire at least two or three shots. The group then returned to Fitzgerald's house.

Jones testified that on June 4, 2010, he lived in Omaha with his wife and three of his children. Betts occasionally resided there as well. At approximately 1:30 a.m. on June 5, while Jones and his wife were in their bedroom, a bullet was fired through the bedroom wall. The couple hid in the closet as several more shots were fired. When the shooting stopped, Jones called the 911 emergency dispatch service. He testified there were no bullet holes in his house prior to this shooting. Betts was not at the house when the incident occurred.

A crime scene technician with the Omaha Police Department crime laboratory testified that she collected shell casings lying in front of Jones' house. She found five shell casings in the street and located 23 bullet holes in the house, which appeared to have been caused by bullets of two different sizes. Several bullets from the house were placed in an envelope along with the five shell casings found in the street.

On June 10, 2010, Castillas, Davis, Fitzgerald, Beckwith, and "Lars" were partying at Fitzgerald's house. Castillas mentioned that Betts "hangs out" at Harris' house, and Castillas and Davis talked about "shooting that house up." The five went in Beckwith's car. Davis was in front, and Castillas was in the rear driver's-side seat. Castillas had the same .22-caliber rifle, and Davis had a new 9-mm weapon that he had just obtained. Castillas and Davis fired at Harris' house. After the shooting, they returned to Fitzgerald's house.

Harris' mother lived in Omaha with Harris and her other son. She was asleep during the early morning hours of June 11, 2010, and was awakened when a bullet struck and passed through her left arm. She fell on the floor as several more shots were fired at her house.

On June 11, 2010, several hours after the second shooting, Betts went to Fitzgerald's house to talk to her about the shootings. While Betts was talking to Fitzgerald outside, Castillas and Davis came outside. Castillas went back inside, and Betts saw him in an upstairs window with a gun that looked like the .22-caliber rifle used in the shootings.

Det. David Schneider attempted to speak with Fitzgerald following the shootings. Fitzgerald and Beckwith eventually went to an Omaha police station and spoke with Detective Schneider. Initially, they were untruthful, but they later admitted that they were involved in the driveby shootings and provided a detailed account. A detective went to Fitzgerald's house and seized the .22-caliber ...


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