Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge.
Alan G. Stoler, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., not participating.
[291 Neb. 182] Miller-Lerman, J.
NATURE OF CASE
Following a jury trial, Marcus M. Escamilla was convicted in the district court for Douglas County of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Escamilla appeals, claiming as his only assignment of error that there was insufficient evidence of premeditation to convict him of first degree murder. Because the record contains sufficient evidence to support the jury's verdict, we affirm his convictions and sentences.
STATEMENT OF FACTS
Escamilla was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person in connection with the 2013 shooting death of Kenneth Gunia. He was sentenced to life imprisonment for his conviction of first degree murder, 5 years' imprisonment for his conviction of use of a deadly weapon to commit a felony, and 3 years' imprisonment for his conviction of possession of a deadly weapon by a prohibited person. Escamilla's sentences were ordered to be served [291 Neb. 183] consecutively to each other, and he was given credit for 414 days of time served.
Evidence at trial generally indicated that on the night of April 16, 2013, Escamilla drove with Michele Willcoxon to an apartment complex located on 24th Street in Omaha, Nebraska, in order to meet up with Gunia. When they arrived at the apartments, Escamilla got out of Willcoxon's black sport utility vehicle (SUV) and met Gunia in the parking lot. They talked outside Gunia's car for a brief time before they both got into Gunia's car, where Escamilla shot and killed Gunia. Escamilla then walked back to Willcoxon's SUV, and she drove Escamilla back to his residence.
Escamilla was charged on July 17, 2013, with first degree murder in alternative theories of premeditated murder and felony murder, use of a firearm to commit a felony, and possession of a deadly weapon by a prohibited person. A jury trial was held May 6 through 9, 2014.
At trial, Willcoxon testified for the State. She said that at the time of Gunia's death,
she knew Escamilla and Janella Marks, who lived with Escamilla, and that she had become recently acquainted with Gunia. Willcoxon testified that at the time, she was using methamphetamine " [a]ll the time," and that part of her relationship with Gunia was based on the use and sale of methamphetamine. On April 15, 2013, Willcoxon " fronted" Gunia some methamphetamine, and at the end of the day on April 15, Gunia owed Willcoxon $275 to $300.
Sometime in the early evening on April 16, 2013, Willcoxon went to the residence of Escamilla and Marks in order to use methamphetamine with Marks. Willcoxon testified that while she was with Marks, she was waiting for Gunia to call her to let her know that he had the money he owed her. Willcoxon told Marks that she had heard that Gunia was going to rob her. Escamilla heard this conversation, and Willcoxon testified that he told her " not to worry about it. He [Escamilla] would say something to him [Gunia]."
Sometime later that evening, Willcoxon left the residence of Escamilla and Marks in her SUV and she agreed to give [291 Neb. 184] Escamilla a ride. Willcoxon testified that Escamilla was wearing a black sweater over a white T-shirt, black pants, black shoes, and a black hat.
Willcoxon and Escamilla drove to a few places, and during that time, Gunia texted Willcoxon and they arranged to meet at the apartment complex on 24th Street. Willcoxon and Escamilla arrived at the apartment complex at approximately 10 p.m., and when they got there, Willcoxon did not see Gunia right away, so she circled the parking lot a couple of times. When Willcoxon and Escamilla saw Gunia walking to his car, Escamilla got out of the SUV and walked toward Gunia. As Escamilla approached Gunia, Willcoxon heard Gunia say, " What? What? What did I do?" as he backed up against the driver's-side door of his car.
Willcoxon circled her SUV around the parking lot another time before parking. When she parked, Willcoxon saw Gunia sitting in the driver's side of his car and Escamilla squatting down next to the driver's-side door. Willcoxon testified that she did not constantly watch the activity going on between Escamilla and Gunia, but that at some point, she looked over and saw Escamilla in the driver's seat and Gunia in the passenger seat of Gunia's car. Willcoxon testified that she did not hear anything come from the car, but that at some point, Escamilla " jogged" back to her SUV and said they needed to go. Escamilla got in the passenger side of Willcoxon's SUV, and she drove them back to Escamilla's residence.
On the way to Escamilla's residence, Escamilla told Willcoxon that he had shot Gunia. Willcoxon testified that Escamilla stated, " 'I shot that fool.'" When asked to describe Escamilla's demeanor when he said that, Willcoxon stated that " [h]e was okay with it. He was hyped up." Willcoxon testified that when Escamilla told her about what had occurred in Gunia's car, " [h]e kind of chuckled" and stated that Gunia " kept asking -- saying that he just want[ed] to go upstairs to his kids."
Willcoxon stated that after they arrived at Escamilla's residence, she stayed for approximately 10 minutes before going [291 Neb. 185] home. Willcoxon testified that she did not see Escamilla with a gun that night, ...