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State v. Lessley

Supreme Court of Nebraska

November 30, 2018

State of Nebraska, appellee,
v.
Tyeric L. Lessley, appellant.

         1. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for 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.

         2. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         3. Homicide: Lesser-Included Offenses: Jury Instructions. A court is required to instruct the jury on all lesser degrees of criminal homicide for which there is proper evidence before the jury, whether requested to do so or not.

         4. __: __:__.A court is not required to instruct a jury on lesser degrees of homicide where the first degree murder charge against the defendant is based upon a theory of felony murder.

         5. Sentences: Time. A sentence validly imposed takes effect from the time it is pronounced.

         6. Sentences. When a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of court at which the sentence was imposed.

         7. Sentences: Judges: Records. The circumstances under which a judge may correct an inadvertent mispronouncement of a sentence are limited to those instances in which it is clear that the defendant has not yet left the courtroom; it is obvious that the judge, in correcting his [301 Neb. 735] or her language, did not change in any manner the sentence originally intended; and no written notation of the inadvertently mispronounced sentence was made in the records of the court.

          Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed in part, and in part vacated and remanded for resentencing.

          Thomas C. Riley, Douglas County Public Defender, Matthew J. Miller, and Natalie M. Andrews for appellant.

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Heavican, C.J.

         INTRODUCTION

         Tyeric L. Lessley was convicted of first degree murder, first degree assault, two counts of use of a weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Lessley appeals, arguing that the evidence was not sufficient to support his convictions and that he was entitled to a manslaughter instruction. We affirm Lessley's convictions and sentences for first degree murder and first degree assault, affirm his convictions and vacate the sentences for use of a weapon to commit a felony and possession of a deadly weapon by a prohibited person, and remand the cause for resentencing.

         BACKGROUND

         Events of October 29, 2016.

         Between 4 and 4:30 a.m. on October 29, 2016, Curtis Goodwin was awake in the home shared with his fiance, Suzanne Pope. The home was located on North 39th Street in Omaha, Nebraska, at the corner of 39th and Kansas Streets. Goodwin was paying bills on his laptop computer, and Pope [301 Neb. 736] was sleeping in a bed in the main floor living room of the residence, which the couple used as their bedroom. Also in the home was Pope's 7-year-old daughter.

         During this time, Goodwin left the home through the back door to investigate a knocking sound he heard at the front of the house. Goodwin testified that family and friends never used the front door of the residence, which faced North 39th Street, but instead entered and exited through the rear door. Indeed, pictures of the scene show that the front door was blocked from the inside by Goodwin and Pope's bed.

         Goodwin grabbed a baseball bat before leaving the house. Goodwin then walked around to his front door, where he discovered a male knocking on the door. Goodwin asked the male if he could help him. The male pointed a gun in

         Goodwin's face and responded, "Yeah, n....., I'm your worst mother fucking nightmare." The male, whom Goodwin testified he did not recognize, then told Goodwin to get into the house.

         The two walked around the side of the house to the back entrance. Goodwin testified that at some point along the way, he dropped the bat. Once inside, the male told Goodwin to "give me all your money and your shit." Goodwin woke Pope to tell her that someone was there to rob them. According to Goodwin, both he and Pope told the intruder they did not have any money. At that point, the intruder shot Pope, took Goodwin's laptop, and shot Goodwin as Goodwin lunged at him.

         Goodwin was able to follow the intruder out of the house and into the backyard, where Goodwin collapsed as the intruder ran down the street carrying Goodwin's laptop. At this time, Goodwin noticed an unfamiliar dark-colored Chevrolet Suburban or Tahoe parked in his driveway, which was located in the backyard of the residence and opened onto Kansas Street. Goodwin testified that this vehicle had no license plates and described the back doors as opening "like kitchen cabinets." The intruder walked back past Goodwin. By this time, [301 Neb. 737] Goodwin had retrieved the bat he dropped earlier and swung it in the direction of the intruder. Goodwin testified that he hit "something," but did not know if it was the intruder. The intruder then shot Goodwin again, dropped the laptop, and drove away in the vehicle, westbound on Kansas Street.

         Pope was killed and Goodwin was injured in this incident. Goodwin was in a coma for nearly 3 months and sustained the loss of one of his kidneys, his spleen and gallbladder, and several feet of his small intestine. Goodwin has been diagnosed with short bowel syndrome, which requires liquid nutrition and a colostomy bag. Complications from his injuries caused Goodwin to fall into a second coma, during which he nearly died.

         "ShotSpotter" evidence corroborated the timing of the gunshots. ShotSpotter is a technology utilized by the Omaha Police Department to determine the location of gunshots based upon sounds captured by microphones positioned in certain parts of the city. Here, ShotSpotter captured the sound of two gunshots, 20 seconds apart, sounding from outside Goodwin and Pope's residence at 4:30 and 4:31 a.m. Neighbors also testified they heard gunshots around that time.

         In addition, neighbors witnessed a vehicle travel west from the residence after they heard the gunshots. One neighbor testified that she saw a dark blue, green, or black Suburban or Tahoe. A second neighbor testified that he witnessed a dark-colored Suburban or Tahoe with a loud exhaust, custom wheels, and tinted windows, and that based upon his experience with vehicles, he estimated the vehicle was between a 1996 and a 1999 model due to its more squared frame.

         DNA and ...


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