1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
3. 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.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
5. Impeachment: Testimony: Prior Statements. One means of attacking the credibility of a witness is by showing inconsistency between his or her testimony at trial and what he or she said on previous occasions.
6. __:__: __ . The trial court has considerable discretion in determining whether testimony is inconsistent with prior statements.
7. __:__: __ . As a general rule, a witness makes an inconsistent or contradictory statement if he or she refuses to either deny or affirm that he or she did, or if he or she answers that he or she does not remember whether or not he or she made it.
8. Evidence: Hearsay. It is elementary that out-of-court statements offered to prove the truth of the matter asserted are hearsay.
9. Rules of Evidence: Impeachment: Prior Statements. Prior inconsistent statements are admissible as impeachment evidence, but they [23 Neb.App. 641] are not admissible as substantive evidence, unless they are otherwise admissible under the Nebraska Evidence Rules.
10. Trial: Appeal and Error. Absent an abuse of discretion, a trial court's ruling will be upheld on appeal.
11. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.
12. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
13. Sentences. 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. The sentencing court is not limited to any mathematically applied set of factors.
14.__. 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.
Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge.
James J. Regan for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
Irwin, Inbody, and Riedmann, Judges.
LaRonn R. Tyson appeals his conviction by a jury of possession of a deadly weapon by a felon and the sentence imposed [23 Neb.App. 642] by the Douglas County District Court thereon. For the reasons that follow, we affirm Tyson's conviction and sentence.
STATEMENT OF FACTS
On June 18, 2014, the State filed an information charging Tyson with one count of possession of a deadly weapon by a prohibited person, a Class ID felony, in violation of Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2014), and one count of possession of a stolen firearm, a Class III felony, in violation of Neb. Rev. Stat. § 28-1212.03 (Cum. Supp. 2014).
A jury trial was held on the matter. The parties stipulated to several items: (1) that Tyson's DNA was taken from Tyson's person and from the gun found at the scene and that the DNA results indicated the presence of human DNA but did not result in scientifically reliable proof that it was Tyson's DNA, (2) that Tyson was a "prohibited person" as defined in § 28-1206, and (3) that the parties agreed the items in evidence were properly handled.
The State called Omaha police officer James Holtmeyer to the stand. Holtmeyer, a 6-year veteran of the Omaha Police Department, testified that he is assigned to the uniform patrol bureau. On May 17, 2014, Holtmeyer was assigned to patrol and conduct surveillance when he received a dispatch call, at approximately 4:30 p.m., regarding an alleged trespassing at a residence on Stone Avenue in Omaha, Nebraska. Upon arrival at the residence, Holtmeyer observed two individuals on the front porch of the residence and several other people inside of the residence. Holtmeyer approached the residence and observed that one of the individuals was male and one was female and that the male was wearing "blue jeans, a red jacket, and a black and gray San Antonio Spur[s] baseball cap." Holtmeyer identified Tyson as that individual. Holtmeyer also smelled a strong odor of marijuana. Holtmeyer testified that Tyson appeared nervous and was clutching his waistband with his right hand on top of his jacket. Holtmeyer asked Tyson for his name and indicated to Tyson that he smelled the [23 Neb.App. 643] odor of marijuana and asked permission to conduct a pat-down search of his person for weapons. Holtmeyer testified that Tyson immediately stood up and jumped over the railing of the front porch.
Holtmeyer testified that he turned and ran down the porch stairs in pursuit of Tyson. Holtmeyer testified that Tyson ran toward the back of the residence between a wooden privacy fence and detached garage. Holtmeyer testified that he did not have visual contact with Tyson as he jumped off the porch, but followed him and could see his back. Holtmeyer also could not see Tyson the entire time he was running through the passageway. Holtmeyer saw Tyson jump over a chain link fence and stumble to his knees. Tyson's black and gray San Antonio Spurs baseball cap fell into the yard. Holtmeyer testified that at that point, he was unable to fit through the passageway and ran east and then southbound around another house. Holtmeyer ran two blocks to Laurel Avenue, where two officers observed Tyson running and apprehended him.
Once Tyson was arrested, Holtmeyer retraced the path that Tyson had taken, because he expected that Tyson had tossed some type of weapon or narcotic. Holtmeyer testified that in his line of work, he has observed that people generally run to delay apprehension and that it is usually weapons or narcotics related. Holtmeyer found the red jacket that Tyson had been wearing, which contained no weapons or narcotics, and along the path, he found Tyson's black and gray San Antonio Spurs baseball cap. Near the wooden fence that separates the yards of two residences on Stone Avenue, Holtmeyer also found a black Heckler & Koch P30 9-mm firearm. Holtmeyer admitted that he did not have Tyson in his field of vision the entire pursuit and that Tyson could have tossed the gun during that time.
Cole Johannsen, an Omaha police officer, testified that he was on patrol on May 17, 2014, when he received a call to assist officers. Johannsen arrived at the specified address [23 Neb.App. 644] on Stone Avenue, exited his police cruiser, and observed Holtmeyer speaking with two individuals on the front porch. One of those individuals, later identified as Tyson, was male and was wearing a red jacket, and as Johannsen approached the porch, that individual jumped off the porch and ran back toward the garage. Johannsen testified that he ran after Tyson and did not lose sight of him until Tyson ran through the area near the wooden fence. Johannsen continued to the back of the house and through the gate where he observed Tyson running southbound through the yards. Johannsen testified that he lost Tyson when Tyson ran through a thicket. When Johannsen made it through the thicket, he noted a black male walking eastbound on the south side of Laurel Avenue in a blue T-shirt. Johannsen testified that the male walking looked suspicious. Johannsen's attention was directed to the male by two young children who told Johannsen that the male in ...