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State v. Heng

Court of Appeals of Nebraska

December 5, 2017

State of Nebraska, appellee,
Carl A. Heng, appellant.

         1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews a trial court's ruling to admit or exclude an expert's testimony for abuse of discretion.

         2. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

         3. Rules of Evidence: Expert Witnesses. An expert's opinion is ordinarily admissible under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination.

         4. Trial: Rules of Evidence: Expert Witnesses. When an expert's opinion on a disputed issue is a conclusion which may be deduced equally as well by the trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier in understanding the evidence or determining a factual issue.

         5. 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.

         6. Trial: Evidence: Records: Proof: Appeal and Error. An appellate court cannot consider an error assigned on the ground that the trial court excluded evidence unless the record reveals an offer of proof or the offer was apparent from the context within which questions were asked.

         7. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

         [25 Neb.App. 318] 8. Trial: Rules of Evidence: Police Officers and Sheriffs: Evidence: Extrajudicial Statements. The admissibility of narrative statements made by law enforcement personnel during an interrogation about the veracity or credibility of the defendant should be analyzed under the ordinary rules of evidence; if the defendant's statement is itself relevant, then it must be considered whether the law enforcement statement is relevant to provide context to the defendant's statement.

         9. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the trier of fact 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 whether the actual guilty verdict rendered was surely unattributable to the error.

         10. Trial: Convictions: Evidence. Where the evidence is cumulative and there is other competent evidence to support the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt.

         11. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

         12. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

         13. Jury Instructions. The trial court may refuse to give a requested instruction where the substance of the request is covered in the instructions given.

         14. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

         15. Self-Defense. Self-defense is a statutorily affirmative defense in Nebraska.

         [25 Neb.App. 319] 16. __.__ To successfully assert the claim of self-defense, one must, inter alia, have a reasonable and good faith belief in the necessity of using force.

         17. Witnesses: Juries: Appeal and Error. The credibility and weight of witness testimony are for the jury to determine, and witness credibility is not to be reassessed on appellate review.

         Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Affirmed.

          Stuart J. Dornan and Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz & Conway, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Arterburn, Judge.


         Carl A. Heng was convicted by a jury of manslaughter and use of a deadly weapon to commit a felony. The district court subsequently sentenced Heng to a total of 14 to 22 years' imprisonment. Heng appeals from his convictions here. On appeal, Heng assigns numerous errors, including that the district court erred in excluding certain evidence, in failing to redact portions of Heng's statement to police before allowing the jury to view it, and in refusing to give the jury an instruction regarding the victim's character for violence and aggression. Heng also alleges that there was insufficient evidence to support both his conviction for manslaughter and his conviction for use of a deadly weapon to commit a felony.

         Upon our review, we find no merit to Heng's assertions on appeal. Accordingly, we affirm his convictions.


         The State filed an information charging Heng with second degree murder pursuant to Neb. Rev. Stat. § 28-304 (Reissue 2016) and with use of a deadly weapon to commit [25 Neb.App. 320] a felony pursuant to Neb. Rev. Stat. § 28-1205(1)(a) (Reissue 2016). The charges against Heng stem from an incident which occurred on August 24, 2015. Evidence adduced at trial revealed that on the night of August 24, Heng got into an argument with Robert Lane in front of an apartment building located near 99th and Q Streets in Omaha, Nebraska. During the argument, Heng pulled a concealed handgun from a holster on his hip and shot Lane. Immediately after shooting Lane, Heng called the 911 emergency dispatch service and provided aid to Lane. Subsequently, Lane died at a hospital. When Heng spoke with law enforcement, he indicated that he had shot Lane in self-defense because he feared for his own life.

         Because Heng admitted that he had shot Lane during their argument, the only disputed issue at trial was whether Heng was justified in shooting Lane in defense of himself or in defense of another.

         The State presented evidence to demonstrate that Heng was not justified in shooting Lane. The State called Aubrey Strong (Aubrey) to testify about her version of the events which immediately preceded the argument between Heng and Lane. Aubrey was Lane's girlfriend at the time of the shooting. Lane lived with Aubrey at the apartments near 99th and Q Streets where the shooting took place. Aubrey was also friends with Heng. They had met at their place of employment, and although they had previously been in a brief romantic relationship, they were just close friends at the time of the shooting.

         Aubrey testified that in the weeks prior to the shooting, Lane had left her apartment for a period of a 1 Vi or 2 weeks because he had "relapsed" and began using marijuana and cocaine again. Aubrey believed that Lane had checked into some sort of rehabilitation center. Lane returned to Aubrey's apartment only a few days prior to the shooting. While Lane was away, Aubrey and Heng saw each other often. In fact, they began spending nights at each other's apartments.

         In the afternoon of August 24, 2015, Aubrey picked up Lane from work. When she picked him up, Lane was talking [25 Neb.App. 321] to someone on his cellular telephone. Aubrey testified that Lane was talking loudly and "aggressive[ly]." When they arrived at the apartment, Lane indicated that he was going to go to an "AA meeting" and began to get ready to leave. When Lane left the bathroom after taking a shower, Aubrey smelled marijuana and "confronted" Lane about whether he was again using drugs. Lane got upset and began to yell at Aubrey. He also knocked over her jewelry box. While Lane was yelling, Aubrey became scared, ran into the bedroom closet, and shut and locked the door. While Aubrey was inside the closet, Lane punched a hole in the closet door. He then left the apartment and drove away in Aubrey's car.

         After Lane left, Aubrey remained at the apartment, waiting for Lane to return. She testified that Lane returned to the apartment approximately VA to 2 hours later. When Lane returned, he brought his friend, Brian Steele, with him. At this time, Lane smelled of alcohol and Aubrey observed a bottle of alcohol hidden in Lane's sock. Aubrey and Lane began to argue again after Lane could not find his wallet. Aubrey testified that during the argument, Lane pushed her "[t]wo steps back" against the bedroom door, which "knocked the wind out of [her], " and she fell to the floor. She testified that she felt "petrified" due to Lane's behavior.

         After Lane pushed her against the door, Aubrey crawled from the bedroom into the kitchen to get her keys. She then left the apartment. Lane followed her into the parking lot of the apartment building and would not let Aubrey leave. After unsuccessfully struggling with Lane to get into her car, Aubrey returned to the apartment where Lane accused Aubrey of cheating on him. Lane and Steele then left the apartment in Aubrey's car. Aubrey could not recall whether she had given them permission to take her car. Aubrey testified that by this point, she was "the mo[st] scared [she] ha[d] ever been." She also testified that prior to August 24, 2015, Lane had never threatened her or assaulted her.

         Aubrey called her younger sister, Emily Strong (Emily), to tell her what happened. Aubrey did not call the police, but [25 Neb.App. 322] Emily did suggest that Aubrey call Heng, who lived nearby. After speaking with Emily, Aubrey sent Heng a text message which stated, '"If I ever send you a blank message, call the cops.'" Aubrey and Heng then engaged in multiple conversations via text messaging and telephone calls, during which Aubrey told Heng that Lane showed up at her apartment intoxicated, punched a hole in her door, and took her car without her permission. She also lied to Heng and told him that she had already called the police. Heng eventually convinced Aubrey to leave the apartment and to meet him at a nearby gas station. Aubrey testified that she started packing a few things, but that at some point, she changed her mind and told Heng not to come meet her because she did not want him to be "involved." However, she also testified that she believed "100 percent" that she needed to leave the apartment for her own safety.

         At some point after her last conversation with Heng, Aubrey left her apartment building and saw Lane lying on the ground. She observed Heng performing cardiopulmonary resuscitation on Lane.

         The State also presented the testimony of several witnesses who contradicted Aubrey's version of the events of the evening hours of August 24, 2015. One of Aubrey and Lane's neighbors testified that on that night, she observed Aubrey and Lane get into Aubrey's car at about 6 p.m., which is around the time that Aubrey testified Lane left for his meeting. The neighbor testified that Aubrey and Lane did not appear to be fighting with each other.

         The State also offered the testimony of Lane's friend, Steele, who was in the apartment while Aubrey and Lane were fighting. Steele testified that at about 6 or 6:30 p.m. on August 24, 2015, Lane picked him up because Lane wanted to talk. As they were driving, Lane told Steele that he wanted him to meet his new girlfriend, Aubrey. Lane then drove Steele to Aubrey and Lane's apartment. Steele testified that prior to arriving at the apartment, Lane seemed "all right" and did not appear to be angry or agitated.

         [25 Neb.App. 323] When Lane and Steele arrived at the apartment, Steele observed there to be some tension between Aubrey and Lane. Steele testified that Aubrey and Lane were arguing with each other and that Aubrey began to cry during the argument. However, he did not observe Lane physically hurt Aubrey. Steele testified that Aubrey never left the apartment while he was there. He also testified that he did observe Lane to be hiding a bottle of alcohol, but indicated that Lane did not appear to be intoxicated.

         After being in the apartment for 30 to 45 minutes, Steele asked if someone could take him home. He testified that Aubrey threw her keys at him, telling him to get Lane out of the apartment. On the way back to Steele's house, Steele told Lane to go back home, sleep on the couch, and make a "sober" decision in the morning. In addition, Steele overheard Lane on the telephone apologizing and saying '"I love you.'" Steele assumed Lane was talking to Aubrey.

         The State also offered the testimony of a homicide detective for the Omaha Police Department to contradict Aubrey's testimony. The detective testified that when she entered Aubrey's apartment after the shooting, she observed a hole on the inside of the bedroom closet door. This testimony clearly contradicts Aubrey's testimony that Lane punched the outside of the closet door while she was locked inside. In addition, the detective testified that there was no sign of a struggle or a fight in the apartment.

         The State played a recording of Heng's interview with Det. Eugene Watson, another homicide detective for the Omaha Police Department. During this interview, Heng discussed his version of the events leading up to the shooting and maintained that he had shot Lane in self-defense during a physical struggle. Heng told Detective Watson that prior to August 24, 2015, Aubrey had told him that she was afraid of Lane. She also told him that Lane had threatened Heng because Lane believed Aubrey was cheating on him with Heng. In the weeks leading up to August 24, Aubrey told Heng that she had ended her relationship with Lane, that she was no longer speaking [25 Neb.App. 324] to him, and that she had taken him to a rehabilitation center. Heng believed that by August 24, Lane no longer lived in the apartment with Aubrey.

         On August 24, 2015, Aubrey texted Heng and told him that Lane had "showed up" at her apartment, had punched a hole in the door, and had stolen her car. Aubrey also indicated that Lane was intoxicated. She told Heng that she had already called the police. Heng told Aubrey to meet him at a nearby gas station so that she could stay at his apartment. Heng subsequently changed his mind about meeting Aubrey at the gas station. Instead, he drove to the parking lot of the "clubhouse" of her apartment complex to wait for her. When he telephoned Aubrey to tell her where he was, she told him that she had called an off-duty police officer who lived in her building to come to her apartment. While Heng was in the parking lot of the clubhouse and still on the telephone with Aubrey, he observed Aubrey's car arrive at the entrance of the apartment complex. Heng observed Lane driving the car "erratic[ally] and very fast." Heng told Aubrey that Lane was back, and Aubrey "panicked."

         Heng followed Aubrey's car to the parking lot in front of her apartment building. He got out of the car and started to approach the door to meet Aubrey. Instead, he encountered Lane, who said, "[H]ey, how are you doing?" in a "sarcas-tic[]" manner. Lane then pushed Heng, and Heng started to back toward the door of the building while Lane followed him. Heng "plead[ed]" with Lane not to go inside. Lane then threatened Heng by saying he would kill him and that he knew where Heng lived. Lane then "came at" Heng and pushed him up against the wall of the building, pinning him there with his entire weight. At this point, Heng was "terrified" and felt he could not get away from Lane as he was pinned in the corner. He was afraid that Lane was going to hurt him or kill him. He was also afraid that if Lane went inside the building, he would hurt Aubrey. Heng felt "powerless" and believed his only option was to shoot Lane with the gun he had holstered on his hip. Heng told Detective Watson that he drew his gun and

          [25 Neb.App. 325] fired two or three times from right by his side. He indicated that when he fired the shots, Lane was still touching him. After the shots, Lane staggered back and fell. Heng immediately started to help him and called 911.

         Upon further questioning by Detective Watson, Heng admitted that prior to firing the shots, Lane had not hit him and had not choked him. Lane was holding him by his shoulders against the apartment wall. However, Heng also indicated that he did not go to the apartment intending to hurt Lane. He said he did not want to do that. He explained that he has a valid permit to carry a concealed gun.

         The State presented the testimony of several witnesses who contradicted Heng's version of the events of the evening hours of August 24, 2015. Jacob Epperson, who was a volunteer firefighter, lived in Aubrey and Lane's apartment building. On August 24, between 9:45 and 10 p.m., Epperson left his apartment to retrieve his pager, which was located in his vehicle parked in front of the apartment building. When Epperson was in the parking lot, he observed two people arguing near one of the entrances to the apartment building. He did not think the argument was "a big deal, " so he returned upstairs to his apartment, using the other entrance. He then went out onto the balcony of his apartment, which overlooked the parking lot. Soon after, he heard a shot and observed a "muzzle flash." He saw Heng moving backward away from the door of the apartment building and toward the parking lot. Epperson testified that he observed Heng holding a gun and that his right arm was fully extended. The shot Epperson observed was fired toward the entrance area of the apartment building. Later, Epperson told police that it appeared to him that Heng was about 5 feet away from Lane when he fired the shot.

         Epperson called 911 and then went outside to help Lane. Epperson began conducting cardiopulmonary resuscitation. When Epperson was taking care of Lane, Heng repeatedly told him that he had shot Lane in self-defense. When police arrived, Epperson identified Heng as the shooter and indicated that Heng still had a gun.

         [25 Neb.App. 326] Epperson's testimony was contradicted by the testimony of his live-in girlfriend, who testified that at the time the gunshots were fired, Epperson was inside the apartment with her. Despite this testimony, Epperson indicated that he was positive he saw the shooting from his balcony.

         The State also presented the testimony of two expert witnesses to refute Heng's version of events. Dr. Michelle Elieff is the forensic pathologist who performed the autopsy of Lane after his death. Dr. Elieff testified that Lane had two "major injuries" at the time of his death: a gunshot wound to his left torso and a gunshot wound to the right leg. The cause of Lane's death was the gunshot wound to his left torso. Dr. Elieff explained that the bullet entered from Lane's left side and had a sideways trajectory. It "lacerat[ed] large blood vessels, the aorta and vena cava, and injur[ed] the liver and blood vessels to the right kidney." Dr. Elieff testified that Lane's injuries were not consistent with Heng's story that he had shot Lane while Lane was "pressed against" him. She testified that there was no evidence of "close range" gunfire on Lane's body. Instead, the evidence revealed that both shots were fired from an "indeterminate range." Dr. Elieff explained that an "indeterminate range" indicates that the ...

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