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State v. Ash

Supreme Court of Nebraska

May 20, 2016


          Appeal from the District Court for Kimball County: DEREK C. WEIMER, Judge.

         Leonard G. Tabor for appellant.

         Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.



         [293 Neb. 585] Stacy, J.


         This is the second time Vencil Leo Ash III has been before us challenging his conviction for first degree murder. In 2012, Ash was convicted of the first degree murder of Ryan Guitron and was sentenced to life in prison. On direct appeal, we reversed, and remanded for a new trial. We found the trial court erred in denying Ash's request for a continuance after the State disclosed, on the brink of trial, that a codefendant would be testifying pursuant to a plea agreement.[1]

         [293 Neb. 586] Ash was retried in 2015, and again was found guilty of first degree murder and sentenced to life in prison. He timely filed this direct appeal and was appointed different counsel to represent him on appeal. We affirm his conviction and sentence.


         On November 4, 2003, Guitron was reported missing by his girlfriend. Guitron's remains were discovered nearly 7 years later, on April 8, 2010, under a woodpile on an abandoned farm in rural Kimball County, Nebraska. The cause of death was determined to be two gunshot wounds, one through his right eye and the other through the back of his neck. The bullet recovered from Guitron's skull was fired from a .380-caliber pistol purchased by Ash's sister. Guitron's death was found to have occurred on October 15, 2003.

         In August 2003, Ash and his 15-year old girlfriend, Kelly Meehan (whom Ash later married), began living with Guitron in Fort Collins, Colorado. Guitron, Ash, and Meehan were methamphetamine users. After living together for several weeks, Ash and Meehan moved out of Guitron's trailer home and began living in a tent near Grover, Colorado. While living in the tent, Ash retrieved the .380-caliber pistol from his sister because Meehan wanted some form of protection. Ash was with his sister when she purchased the pistol on August 1, 2003, in Walsenburg, Colorado.

         1. Meehan's Version of Events

         Meehan testified that Ash threatened to kill Guitron after finding Meehan's bra and underwear in Guitron's backpack, along with a pornographic magazine. On the day of the murder, Ash asked Guitron to travel with Ash and Meehan to get methamphetamine. Ash drove them in Guitron's car to an abandoned farm. Ash, Guitron, and Meehan smoked methamphetamine during the drive, and again upon arriving at the abandoned farm.

         According to Meehan, all three got out of Guitron's car and walked around the farm. They discovered parts of a baby bed, [293 Neb. 587] and Ash instructed Meehan to collect the parts and take them back to the car. On her way back to the car, Meehan heard a gunshot. She looked back and saw Ash standing over Guitron's body, holding the .380-caliber pistol. Meehan testified this was the first time she had seen the pistol that day, because Ash normally tucked the pistol in his pants. Meehan stated she did not hear or see a struggle or see any other weapon during the incident. Ash then walked to the car, got a pair of black gloves, and told Meehan he was going to bury Guitron under a wood-pile near the farm. According to Meehan, after Ash covered up the body, they left to get gas and then drove Guitron's car back to Fort Collins. During the drive to Fort Collins, Ash told Meehan that Guitron had come after him with a knife, so Ash shot him.

         2. Ash's Version of Events

         Ash denied finding Meehan's bra and underwear in Guitron's backpack and claimed he and Guitron were good friends. Ash claimed that on the day of the murder, he, Guitron, and Meehan went in Guitron's car to get some iodine from Guitron's source so that Ash could " 'cook'" more methamphetamine.[2] The three of them smoked methamphetamine during the drive. Ash missed a turn, and they ended up at an abandoned farm where some old cars caught his eye. Ash claimed he left his sister's .380-caliber pistol in a cooler in the back seat next to Meehan. According to Ash, they found a baby bed while walking the farm property. Ash went back to the car to retrieve tools so that Meehan could dismantle the baby bed, and at the same time, Guitron returned to the car and got a .22-caliber rifle. While Meehan dismantled the baby bed, Ash and Guitron continued to search the property.

         During the search, Guitron wanted to smoke more methamphetamine, but discovered none was left. According to Ash, Guitron said that " 'he was going to kill that . . . bitch,'" [293 Neb. 588] referring to Meehan, and " 'took off running'" with the rifle in hand.[3] Ash claimed he went after Guitron and saw Guitron fire a shot from the .22-caliber rifle at Meehan. Ash then knocked the rifle out of Guitron's hand, which caused another round to go off. The two men struggled, and then Ash saw Meehan and heard a shot. The men fell to the ground, and Ash heard another shot. Ash claimed he then saw Guitron lying on the ground and saw Meehan in the car, banging her head against the dashboard. Ash claimed he and Meehan then left in Guitron's car to get gas. They returned, however, to pick up the rifle and retrieve from Guitron's person the address for Guitron's iodine source.

         After the murder, Ash traded Guitron's car for a Cadillac Escalade. Ash and Meehan then drove the Escalade to Guitron's home in Fort Collins and loaded some of Guitron's property into the Escalade.

         3. Investigation

         On October 18, 2003, 3 days after Guitron's death, Ash was arrested on a warrant for parole violations. The Escalade remained with Meehan after Ash's arrest. The following day, Meehan was arrested on a juvenile warrant, and the .380-caliber pistol was discovered under Meehan's bed at Ash's sister's house, where Meehan had been living. After Meehan's arrest, the Escalade was towed and several of Guitron's possessions were found inside, including his credit card and various personal items. Pieces of the baby bed gathered on the day of the murder were also found in the Escalade. Later, on November 24, law enforcement retrieved the .380-caliber pistol from Ash's sister. It was not disputed that this was the weapon used to shoot Guitron.

         After Guitron's disappearance, Ash was questioned by law enforcement on several occasions. On November 4, 2003, Ash indicated he had last seen Guitron on October 17. Ash [293 Neb. 589] claimed Guitron was supposed to pick him up to work at an oil rig the next day, but never showed up. On March 18, 2004, Ash was interviewed by the lead investigator into Guitron's disappearance. At that time, Ash claimed he had seen Guitron alive on October 18, 2003, at Guitron's home. Ash denied killing Guitron, but at the end of the interview, unsolicited, he asked whether they had found Guitron's body. Ash then stated that if Guitron was dead, law enforcement would have found his body because it had been quite some time since Guitron's disappearance.

         On April 2, 2010, Meehan was interviewed by law enforcement on a different matter. During the interview, she volunteered that Ash had killed Guitron. Meehan was then escorted by the lead investigator to try to locate the abandoned farm, but she failed to do so. A few days later, on April 7, the lead investigator again interviewed Ash. During this interview, Ash initially denied shooting Guitron, but then admitted shooting Guitron twice to protect Meehan because Guitron was shooting at her. Ash then directed law enforcement to the abandoned farm, where Guitron's remains were later discovered.

         Officers also located two .22-caliber rifle casings at the abandoned farm. One casing was found on top of the dirt, and the other on top of some cement; neither casing was rusted. Based on the locations of the two casings, law enforcement determined the casings could not have been ejected to their respective locations from where Guitron had been shot, as shown by physical evidence that still remained at the scene, or from where his remains were located.

         Ash was charged with first degree murder in connection with Guitron's death. In a separate information, Meehan was charged with aiding and abetting the first degree murder of Guitron.[4] Meehan eventually reached a plea agreement with the State, and she testified as a central witness against [293 Neb. 590] Ash at both the first and the second jury trial. After the second jury trial, Ash was found guilty of first degree murder and sentenced to life in prison. He timely filed this direct appeal.


         Ash presents four assignments of error on appeal: (1) There was insufficient evidence to support the jury verdict, (2) the trial court erred in various evidentiary rulings made during trial, (3) the trial court erred in overruling his motion for new trial, and (4) his trial counsel was ineffective.


          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.[5]

          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.[6]

          A trial court's order denying a motion for new trial is reviewed for an abuse of discretion.[7]

         [293 Neb. 591] An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court.[8]

          Whether a claim of ineffective assistance of trial counsel raised on direct appeal may be determined on direct appeal is a question of law.[9] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?[10]

         V. ANALYSIS

         1. Sufficiency of Evidence

         Ash argues the evidence was insufficient to convict him of first degree murder. His brief highlights several inconsistencies in the evidence--particularly in the testimony of Meehan. Ash suggests that because of these inconsistencies, the evidence presented lacked sufficient probative value. We disagree.

         The evidence submitted at the second trial, including Meehan's testimony, was substantially similar to the evidence submitted at the first trial. In Ash's first direct appeal, we specifically analyzed whether the evidence presented was sufficient to convict Ash of first degree murder, and found [293 Neb. 592] it was.[11] Ash now argues that Meehan's testimony was not credible, but it is not this court's function to assess the credibility of witnesses when determining the sufficiency of the evidence.[12] Viewed in the light most favorable to the prosecution, the evidence presented at the second trial was sufficient for a rational jury to find beyond a reasonable doubt that Ash was guilty of first degree murder. This assignment of error is without merit.

         2. Errors in Trial Court Rulings

         Ash assigns broadly that there were " [e]rrors in the ruling of the trial court during the trial." [13] In his brief, Ash identifies six rulings relating to this assignment of error. We address each in turn.

         (a) State's Opening Statements and Motion for Mistrial

         During opening statements, the prosecutor gave a detailed and lengthy summary of the procedural and substantive history of the case. As part of that summary, the prosecutor said detectives had a " big break" in April 2010 when Meehan was interviewed on an unrelated incident. The prosecutor explained that " during that interview," Meehan told investigators she had information about Guitron's disappearance. The prosecutor then went on to describe Meehan's general version of events and, in doing so, referred sometimes to Meehan's anticipated trial testimony using typical phrases like " she will tell you" and " she will testify" and other times referred instead to what Meehan " said." Ash did not object to the prosecutor's remarks during the State's opening statement. Instead, after both parties' opening statements were finished and the jurors were excused for the evening, Ash made a record of his [293 Neb. 593] objection that the prosecutor's opening statement referenced inadmissible hearsay, and moved for mistrial. In opposing the motion, the State conceded the prosecutor's remarks had been imprecise, but argued the point was to " get across the fact that this is [Meehan's] story and this is the story [the jury would] hear . . . when she comes up [to] testify." The court overruled the motion for mistrial.

          Ash contends the overruling of his motion for mistrial was error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.[14] Events that may require the granting of a mistrial include egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of incompetent matters.[15] Whether to grant a motion for mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.[16]

         Assuming without deciding that Ash's objection adequately preserved the issue for appellate review, we conclude the court did not abuse its discretion in overruling the motion for mistrial. Our review of the record demonstrates the prosecutor's description of Meehan's testimony was ambiguous in terms of tense, and the jury could easily have understood the prosecutor's remarks as foretelling Meehan's trial testimony, rather than referencing what she actually said to investigators in 2010. The prosecutor's occasional reference to " she said" rather than " she will testify" in the opening statement is not the type of egregious or prejudicial statement that requires a mistrial, particularly when the jury was specifically admonished that counsel's [293 Neb. 594] statements were not evidence. There is no merit to this assignment of error.

         (b) Guitron's Oakland Raiders Jacket and Television

         At trial, the State presented evidence that Ash had pawned two items belonging to Guitron: an Oakland Raiders jacket and a television. The jacket was pawned 2 days before the murder and the television 2 days after. Ash objected to this evidence based on Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), arguing it was inadmissible character evidence. The court overruled his objections and admitted the evidence.

          Ash asserts in his brief that this evidence was erroneously admitted, but he presents no argument as to how or why the court erred, and we decline to speculate. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.[17] This requirement is not designed to impede appellate review, but to facilitate it by preventing parties from shifting to appellate courts the critical tasks of searching the record for relevant facts, identifying possible error, and articulating a legal rationale that supports the assigned error. Because Ash presents no argument regarding the error he assigns to admission of this evidence, the issue is not properly presented for appellate review and we do not address it further.

         (c) Meehan's Testimony

         In his brief, Ash asserts that Meehan testified she regretted telling investigators about Ash's role in Guitron's murder, because she married Ash in 2010. Ash also notes there was evidence he and Meehan had several conversations about her anticipated testimony. Other than generally referencing this evidence, Ash's brief cites no evidentiary ruling he claims was [293 Neb. 595] erroneous and presents no argument that the admission of this evidence resulted in any type of error or prejudice. We are left to speculate as to both the source and the nature of any error, and we decline to do so.

         An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.[18] Because this error ...

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