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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
Jury Instructions. The trial court may refuse to give a
requested instruction where the substance of the request is
covered in the instructions given.
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.
Self-Defense. Self-defense is a statutorily affirmative
defense in Nebraska.
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.
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
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
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
Chief Judge, and Bishop and Arterburn, Judges.
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.
our review, we find no merit to Heng's assertions on
appeal. Accordingly, we affirm his convictions.
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.
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.
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
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
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
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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
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