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State v. Graves

Court of Appeals of Nebraska

October 6, 2015

State of Nebraska, appellee,
v.
Michael J. Graves, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Sarpy County: Max Kelch, Judge. Affirmed.

Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.

Pirtle, Riedmann, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

BISHOP, JUDGE.

Michael J. Graves appeals from his conviction of terroristic threats, a Class IV felony. Graves contends that the district court for Sarpy County erred in failing to instruct the jury on the offense of intimidation by telephone call, which he argues is a lesser-included offense of terroristic threats. He also argues that the court erred in failing to answer a question from the jury before the jury returned a verdict, and he challenges the sufficiency of the evidence. For the following reasons, we affirm.

BACKGROUND

On July 31, 2014, Graves was charged by information with one count of terroristic threats in violation of Neb. Rev. Stat. § 28-311.01 (Reissue 2008) in that on April 20 he threatened to commit a crime of violence with the intent to terrorize Donna Berryman. He was also charged with one count of stalking in violation of Neb. Rev. Stat. § 28-311.03 (Reissue 2008) based on his alleged harassment of Berryman from April 20 to 27.

A jury trial was held on October 23 and 24, 2014. Sergeant Howard Banks of the Bellevue police department testified that on April 27 he responded to a report of harassment at a home in Bellevue, Nebraska, where he met with Berryman and her husband and daughter. Berryman reported that Graves, her ex-husband, had threatened her via text message and voicemail. Sergeant Banks viewed the text messages and listened to the two voicemails. He identified exhibit 5 as a CD with two files: (1) a file containing a typed transcription of the text messages between Berryman and Graves and (2) a file containing a series of "screen shots" from Berryman's phone showing the text messages.

Berryman testified that she married Graves in 1998 and divorced him in 2004. During the marriage, she and Graves had three children together, who were ages 24, 22, and 15 at the time of trial. Following the divorce, Graves relocated to Arizona, where he continued to reside at the time of the events in this case.

According to Berryman, on April 20, 2014, she was at home when she received a text message from Graves stating "it's Easter Sunday." Berryman responded, asking what he meant by that. Graves then called Berryman's phone, and the two spoke for half an hour. The call ended when Berryman's phone battery died. That night, Graves continued to send text messages and leave voicemails.

Berryman identified exhibit 1 as a CD containing recordings of the voicemails and phone call. During the phone call, which was played for the jury, Graves referenced that he had paid $45, 000 in child support in the past 4 or 5 years and repeatedly told Berryman that if she paid him $45, 000 or $50, 000, he would "walk away" from his 15-year-old daughter. At various points, Graves said, "I know where you're at, " "I will come and find you, " "I have nothing here in Phoenix, " and "We'll do it the hard way."

The voicemail messages were then played for the jury. In one of the voicemail messages, Graves said, "I will find you and I will shoot you up with an AK-47 or whatever."

Berryman also testified concerning the text messages she received from Graves on April 20, 2014. In one series of text messages, Graves wrote, "50k!, " "50k!, " "50k!, " "50 graves!, " "50 graves!, " "50 graves!, " which Berryman interpreted as meaning "50 graves in the ground or $50, ...


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