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State v. Schramm

Court of Appeals of Nebraska

July 30, 2019

State of Nebraska, appellee,
Michael T. Schramm, appellant.

         1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

         2. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

         3. Motions for Continuance: Appeal and Error. The failure to comply with the provisions of Neb. Rev. Stat. § 25-1148 (Reissue 2016) is but a factor to be considered in determining whether a trial court abused its discretion in denying a continuance.

         4. Motions for Continuance. A continuance must be granted to allow defense counsel adequate time to prepare a defense.

         5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence. A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State's evidence in a criminal case.

         6. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(2) (Reissue 2016) requires the State, upon request, to disclose evidence that is material to the preparation of a defense.

         7. Motions for Continuance: Appeal and Error. There is no abuse of discretion by a court in denying a continuance unless it clearly appears that the defendant suffered prejudice as a result thereof.

         8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

         [27 Neb.App. 451] 9. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

         10. Trial: Expert Witnesses. Under the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

         11. Pretrial Procedure: Expert Witnesses. A challenge to the admissibility of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), should take the form of a concise pretrial motion. It should identify, in terms of the DaubertlSchafersman factors, what is believed to be lacking with respect to the validity and reliability of the evidence and any challenge to the relevance of the evidence to the issues of the case.

         12. 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.

         13. Jury Instructions: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         14. ___: ___. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

         15. 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.

         16. Jury Instructions. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Reversed and remanded for a new trial.

          Matthew K. Kosmicki for appellant.

         [27 Neb.App. 452] Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Riedmann, Arterburn, and Welch, Judges.



         Pursuant to a jury verdict, Michael T. Schramm was convicted in the district court for Lancaster County of strangulation and sentenced to 2 years' imprisonment followed by 12 months' postrelease supervision. Schramm appeals from his conviction and sentence. On appeal, he alleges that the district court erred in denying his motion to continue the trial so that he could obtain his own expert witness, in permitting the State's expert witness to testify over his objections, in instructing the jury, and in imposing an excessive sentence. For the reasons set forth herein, we find that the district court abused its discretion in denying Schramm's motion to continue the trial. Schramm should have been provided with additional time to attempt to find his own expert witness. As a result of our finding, we must reverse Schramm's conviction and remand the cause for a new trial.


         On November 1, 2017, the State filed an information charging Schramm with strangulation, in violation of Neb. Rev. Stat. § 28-310.01 (Reissue 2016), a Class IIIA felony. The charge against Schramm stemmed from an incident between Schramm and his then girlfriend, J.K., which occurred in the early morning hours of August 28, 2017.

         J.K. is a citizen of the Czech Republic. Beginning in 2014, she began spending time in Lincoln, Nebraska, after obtaining a student visa. She completed a semester of classes at the University of Nebraska-Lincoln and had an internship. When her student visa expired, she went home to the Czech Republic, but later obtained a tourist visa and returned to Lincoln. While J.K. was in Lincoln, she met Schramm through mutual friends. [27 Neb.App. 453] The two began a romantic relationship in February or March 2016. Schramm testified that "immediately we fell in love and she moved in with me." During their relationship, J.K. went back and forth between Lincoln and the Czech Republic. When she was in the Czech Republic, Schramm would come to visit her there.

         By August 2017, J.K. was back in Lincoln and was living with Schramm at his home. J.K. was not employed, but Schramm had his own business buying and selling video games online. On the afternoon of August 27, 2018, Schramm surprised J.K. by taking her on a day trip to Omaha, Nebraska, to visit a zoo. On their way to Omaha, they stopped at a shopping center where Schramm bought J.K. a new purse. They then traveled the rest of the way to the zoo where they stayed until it closed. After leaving the zoo, J.K. and Schramm went to a bar in Omaha where they each had at least one alcoholic beverage. J.K. then drove them back to Lincoln. Schramm testified that on the drive back to Lincoln, they were "[m]adly in love." They arrived home around 10 or 11 p.m., consumed more alcohol, and then decided to go to a local bar. At the bar, both J.K. and Schramm continued to drink alcohol. They left the bar at 2 a.m. and returned to Schramm's house.

         When they returned to Schramm's house, J.K. and Schramm engaged in a verbal argument regarding Schramm's business and his ability to earn an income. J.K. testified at trial that during the verbal argument, Schramm indicated that he wanted to buy a new house and that he believed he could quickly obtain enough money to do so by selling all of his video game inventory. She indicated that he also began to insult and disparage her regarding her financial situation, including making comments that she did not have a job and that she still received financial support from her parents. Schramm then went upstairs to play video games. J.K. explained that she was upset with Schramm and did not like his exaggerations about the success of his business. So, out of anger, she yelled up the stairs to Schramm, telling him that he did not earn [27 Neb.App. 454] enough money to be able to buy a new house and that she did not believe what he had said about his ability to earn so much money so quickly. J.K. admitted that she knew these comments would make Schramm mad.

         J.K. indicated that Schramm, in fact, became very upset by her comments. She heard him yell that "this is enough, I am going to kill you." She then heard him start to run toward the stairs, so she started to run downstairs to the basement to hide from him. When she got to the landing of the basement steps, she became worried that Schramm would laugh at her for being scared, so she pretended to get food for their dogs on a shelf above the landing. While her back was turned, J.K. heard Schramm open the basement door. She felt him push her in the back, and she fell the rest of the way down the basement stairs, landing against a mattress that was propped up against the wall of the basement. She started to cry and attempted to stand up. Schramm ran down the stairs after her, grabbed her neck with his left hand, pulled her to a standing position, and pushed her head against the wall. Schramm told her, "this is enough" and "I am going to kill you this time." J.K. described Schramm as looking her straight in the face, with eyes that "were violent," while "[g]rinding" his teeth.

         J.K. testified that while Schramm had his hand around her neck, she felt pressure. She tried to tell Schramm that he was hurting her, but she was unable to talk and unable to breathe. J.K. described that as the pressure around her neck continued, she started to panic and realized she needed to fight back. She testified that she was very scared and knew that she might die. She pulled Schramm's hair so that his head was very close to her face and bit his ear as hard as she could. J.K. was then able to get free from Schramm's grasp. She ran up the stairs and out the main door of the house, without stopping to grab her purse or her cellular telephone. She ran to a neighbor's house and banged on the door until someone answered. The neighbor called police. J.K. testified that she chose this neighbor to run to, even though she knew he had "issues" with [27 Neb.App. 455] police, because her other neighbor was friends with Schramm and she believed he might not help her.

         When police arrived, they spoke with J.K. about what had occurred. One of the first officers on the scene, Officer Jesse Orsi, contacted J.K. first. He described J.K. as crying and being unable to speak. She had her hands up by her neck, "doing a gesture as if she was choking herself," and was also pointing at Schramm's house. Eventually, J.K. spoke in a voice that Orsi described as not being "normal" and sounding "soft [and] broken." All she was able to say was, "my boyfriend." Orsi understood J.K. to be trying to explain that "her boyfriend choked her."

         Officer Robert Hallowell spoke with J.K. next. He indicated that upon his arrival, J.K. was "frantic" and was crying. She had leaves in her hair and was speaking very fast. J.K. told Hallowell that she had been pushed down the stairs and strangled during a fight with her boyfriend. J.K. also told him that the fight was her fault, because she had made comments which she knew would upset Schramm. Hallowell observed various injuries on J.K., including "extremely bloodshot eyes," which, in his opinion, were caused by more than just her consumption of alcohol; some redness to both sides of her neck around the area of her clavicle bones; a small bump on the back of her head; and abrasions on her elbow and on her knee. His photographs of these injuries were offered into evidence by the State. J.K. declined any medical treatment for her injuries.

         Hallowell also photographed the area in the basement where J.K. described the assault as occurring. These photographs depict a "steep" staircase with a mattress propped up at the bottom of the staircase. Close up pictures of the wall of the basement near the staircase appear to show long blond hairs to be stuck "within [the] rough texture on the [basement] wall." According to Hallowell, these hairs "were consistent with coming from [J.K.'s] head." The photographs also depict leaves [27 Neb.App. 456] on the basement floor which appear to be consistent with the leaves seen in J.K.'s hair.

         At trial, Schramm testified in his own defense and described a much different series of events after he and J.K. returned from the bar in the early morning hours of August 28, 2017. Schramm testified that he and J.K. actually began arguing in the car on the way home from the bar. He explained that he was upset with J.K. because she had been talking to "an old interest" while they were at the bar. He told her that he was not happy with her and was jealous because of her behavior. When they got home, Schramm explained that J.K. "got aggressive." He went on to testify, "She was bored with the house and she did not like or think my job was a real thing. And she brings it up. So she brought it up about that I need to stop doing something besides sitting in the house and selling video games all day." Schramm indicated that he did not engage in the argument with J.K. Instead, he asked her why she "always [was] so mean" to him. She responded by telling him, "[Y]ou have no idea how many times I have cheated on you." She then ran down the basement stairs, stopping on the second to the last step.

         Schramm followed J.K. down the basement stairs, asking her to repeat what she had just told him. When she turned around to address him, she lost her footing and leaned back into the mattress at the bottom of the staircase. As he approached her, she hit him three times on the head with a closed fist, without saying anything to him. She then pulled his hair and pressed her fingers into his face. He pushed her away from him, placing his hands at her clavicle bones. As she moved away from him, she continued to hold on to his hair, and she pulled some hair out of his head. Schramm testified that he never squeezed J.K.'s throat and that J.K. did not bite his ear. She did run upstairs and outside, however. Schramm explained that he did not immediately follow her, because he was trying to give her some "space" so that she could calm down. Schramm watched as J.K. ran to a neighbor's house. [27 Neb.App. 457] He testified they did not get along with that neighbor and were "terrified" of him.

         Schramm offered into evidence a picture of himself, which he explained was taken close in time to J.K.'s assault of him. The pictures ...

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