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
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.
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.
Motions for Continuance. A continuance must
be granted to allow defense counsel adequate time to prepare
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.
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.
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.
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.
Neb.App. 451] 9. Expert Witnesses: Appeal and
Error. The standard for reviewing the admissibility
of expert testimony is abuse of discretion.
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.
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.
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.
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.
___: ___. 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
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. 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.
from the District Court for Lancaster County: Darla S. Ideus,
Judge. Reversed and remanded for a new trial.
Matthew K. Kosmicki for appellant.
Neb.App. 452] Douglas J. Peterson, Attorney General, and
Kimberly A. Klein for appellee.
Riedmann, Arterburn, and Welch, Judges.
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
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.
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.
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.
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
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.
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.
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."
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.
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.
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.
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.
offered into evidence a picture of himself, which he
explained was taken close in time to J.K.'s assault of
him. The pictures ...