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01/15/2019 08:08 AM CST
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. JACKSON
Cite as 26 Neb. App. 727
State of Nebraska, appellee, v.
Jahhme D. Jackson, appellant.
___ N.W.2d ___
Filed January 8, 2019. No. A-17-1154.
1. 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.
2. 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.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. 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.
5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
6. 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
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. JACKSON
Cite as 26 Neb. App. 727
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the instruction.
7. Self-Defense. To successfully assert the claim of self-defense, a defend
ant must have a reasonable and good faith belief in the necessity of
using force and the force used in defense must be immediately necessary
and justified under the circumstances.
8. Self-Defense: Proof. The defendant bears the initial burden to produce
evidence which supports a claim of self-defense.
9. Self-Defense. Only unlawful force directed at a defendant provides a
justifiable basis for self-defense.
10. Sentences: Appeal and Error. An appellate court will not disturb sentences that are within statutory limits, unless the district court abused its
discretion in establishing the sentence.
11. ____: ____. Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and
applying the following factors: the defendant’s age, mentality, education,
experience, and social and cultural background, as well as his past criminal record or law-abiding conduct, motivation for the offense, nature of
the offense, and the amount of violence involved in the commission of
the crime.
12. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Yohance
Christie for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Pirtle, Judge.
INTRODUCTION
Jahhme D. Jackson appeals his conviction and sentence for
assault in the second degree in the district court for Lancaster
County. He argues that the district court failed to provide proper
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. JACKSON
Cite as 26 Neb. App. 727
jury instructions, that an exhibit was improperly excluded, that
the evidence was insufficient to support a guilty verdict on the
charge, and that his sentence was excessive. Based on the reasons that follow, we affirm.
BACKGROUND
On May 11, 2017, Jackson was charged by information
with assault in the second degree, a Class IIA felony, in violation of Neb. Rev. Stat. § 28-309 (Reissue 2016). The charge
arose from an incident on October 18, 2016, at the Nebraska
State Penitentiary, where Jackson was incarcerated. Jackson
had been placed in the “control unit” approximately 1 month
before the incident occurred. On October 17, Jackson indicated
to a staff member that he was suicidal. Jackson told the staff
member that he was going to jump off the sink in his cell and
“crack [his] head open.” Jackson was subsequently moved to
the skilled nursing facility (SNF). Inmates being taken to or
from the control unit must be placed in restraints pursuant
to Nebraska Department of Correctional Services procedures.
When Jackson was moved from the control unit to the SNF, he
was in restraints.
At the SNF, Jackson was placed in a room with a padded
bed which was equipped with a five-point restraint system. The
five-point restraint system is used to hold a person flat on his
or her back by attaching fabric restraints to the person’s legs,
arms, and chest. Jackson was placed in the five-point restraint
system. He remained in the five-point restraint system until
dinner on October 18, 2016. Staff members released Jackson’s
chest and right arm restraints to allow him to eat. After eating, Jackson refused to allow the staff members to reattach the
chest and right arm restraints.
At approximately 6 p.m. on October 18, 2016, Sgt. William
Hogan was given orders by his lieutenant to move Jackson
from the SNF to the control unit. Hogan and another staff member went to Jackson’s room. Hogan entered Jackson’s room
and removed the blanket covering Jackson. He then provided
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STATE v. JACKSON
Cite as 26 Neb. App. 727
Jackson with a T-shirt and sweatshirt, because Jackson had
been wearing paper garments while in the SNF. Hogan undid
the restraint on Jackson’s left arm to allow him to put on the
clothing. After Jackson put on the clothing, Hogan approached
him in order to put restraints on him for the transport to the
control unit. Hogan said Jackson “told [him], if you put hands
on me, I am going to put hands on you.” Hogan attempted to
further communicate with Jackson regarding this statement and
the situation, but Jackson did not say anything else. Hogan
then leaned over Jackson to attempt to put the restraints on him
and Jackson jerked his hand away. Hogan called for assistance
from the emergency response team (ERT).
Sgt. Jared Hanner was the ERT supervisor at that time. He
responded to Hogan’s call, along with the other ERT members. Hogan described the situation to Hanner. Hanner then
explained to the ERT members that they would act in unison
to restrain Jackson’s arms if force was necessary. The ERT
members entered the room along with Hogan and surrounded
the bed that Jackson was on. Hanner asked Jackson “if he
was going to fight,” to which Jackson did not reply. Hanner
then gave a signal to the other ERT members to attempt to
restrain Jackson’s arms in unison. Hanner restrained Jackson’s
left arm, but the other ERT members were not able to restrain
his right arm and Jackson hit Hanner in the face twice with
his right fist. ERT members then restrained Jackson on the
bed until his hands were handcuffed behind his back. A member of the medical staff then came and examined Jackson to
ensure he was not injured. Jackson was not injured during the
incident. He was ultimately transported via a gurney to the
control unit. Hanner suffered a black eye and a chipped bone
in his nose.
After hearing all of the evidence, the jury convicted Jackson
of assault in the second degree. The district court subsequently
sentenced Jackson to 2 to 4 years’ imprisonment to run consecutively to any other sentence Jackson was serving. Jackson
received 2 days of credit for time served.
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. JACKSON
Cite as 26 Neb. App. 727
ASSIGNMENTS OF ERROR
Jackson asserts the district court erred in failing to provide
a self-defense instruction to the jury and in excluding exhibit
5 from evidence. He further asserts that there was insufficient
evidence to sustain a conviction and that the district court
imposed an excessive sentence.
STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. State v. Miller, 281 Neb. 343,
798 N.W.2d
827 (2011).
[2,3] 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. State v. Hill,
298 Neb. 675,
905 N.W.2d 668 (2018).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of
discretion.
Id.
[4] 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. State v. Cotton,
299 Neb. 650,
910 N.W.2d 102 (2018), disapproved on other grounds, State v.
Avina-Murillo,
301 Neb. 185,
917 N.W.2d 865 (2018). 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.
Id.
[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Russell,
299 Neb. 483,
908 N.W.2d
669 (2018).
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STATE v. JACKSON
Cite as 26 Neb. App. 727
ANALYSIS
Jury Instruction
At trial, Jackson requested that the court include a jury
instruction regarding self-defense. The court determined that
Jackson had not presented sufficient evidence to warrant the
inclusion of a self-defense instruction.
[6-9] 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 instruction. State v. McCurry, 296 Neb. 40,
891 N.W.2d 663 (2017). To successfully assert the claim of
self-defense, a defendant must have a reasonable and good
faith belief in the necessity of using force and the force used
in defense must be immediately necessary and justified under
the circumstances. State v. Urbano,
256 Neb. 194,
589 N.W.2d
144 (1999). The defendant bears the initial burden to produce
evidence which supports a claim of self-defense.
Id. To successfully assert the claim of self-defense, a defendant must
have a reasonable and good faith belief in the necessity of
using force.
Id. Only unlawful force directed at a defendant
provides a justifiable basis for self-defense.
Id. “Unlawful
force” is force “which is employed without the consent of
the person against whom it is directed and the employment
of which constitutes an offense or actionable tort.”
Neb. Rev.
Stat. § 28-1406(1) (Reissue 2016). The use of force by a warden or other authorized official of a correctional institution is
justified if:
(a) He or she believes that the force used is necessary for the purpose of enforcing the lawful rules or
procedures of the institution, unless his or her belief
in the lawfulness of the rule or procedure sought to be
enforced is erroneous and his or her error is the result
of ignorance or mistake as to the provisions of sections
28-1406 to 28-1416, any other provision of the criminal
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STATE v. JACKSON
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law, or the law governing the administration of the
institution;
(b) The nature or degree of force used is not forbidden
by section 28-1408 or 28-1409; and
(c) If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416.
Neb. Rev. Stat. § 28-1413(4) (Reissue 2016).
The district court found that Jackson had not presented any
evidence that the force used against him was unlawful. Jackson
argues that the force was unlawful because the ERT members
did not follow proper procedures. Jackson specifically alleges
that this was a “planned use of force” which has a set of procedures which were not followed in this case. Brief for appellant
at 18. In addition, Jackson alleges that the staff did not follow
the guidelines for “levels of use of force.”
Id. at 20. Finally,
Jackson alleges that the ERT members were unnecessarily
aggressive in their actions.
While the violation of department policy may be evidence
that the degree or nature of force used was unlawful, § 28-1413
ultimately requires the court to make a determination that the
force used was not forbidden by
Neb. Rev. Stat. § 28-1408
(Reissue 2016) or
Neb. Rev. Stat. § 28-1409 (Reissue 2016).
As such, we need not review whether the ERT members violated department policy but only determine whether the actual
force used was appropriate under the statute. Jackson had been
instructed to provide his hands to be restrained. He refused and
then threatened Hogan. When confronted with additional ERT
members, he did not respond to them and then punched Hanner
in the face. These actions led up to the use of force against
him. Given the amount of force used, and Jackson’s own
actions leading up to it, the force used does not fall under any
of the restrictions of § 28-1408 or § 28-1409. Thus, the force
used was justifiable pursuant to § 28-1413 and was therefore
lawful force.
Jackson also argues that the force used was excessive and,
thus, that he was entitled to a self-defense instruction. While
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26 Nebraska A ppellate R eports
STATE v. JACKSON
Cite as 26 Neb. App. 727
Nebraska recognizes such instructions where arresting officers
use excessive force, see State v. Yeutter,
252 Neb. 857,
566
N.W.2d 387 (1997), this same standard has not been applied to
staff at a correctional facility. However, the force used in this
case would not rise to the level necessary to meet the defend
ant’s initial burden if such standards were applied given the
justified and lawful use of force discussed above. As such, we
conclude the district court did not err in finding that Jackson
failed to produce sufficient evidence to warrant a self-defense
jury instruction.
A dmission of Evidence
Jackson alleges that the court erred in excluding exhibit 5.
Exhibit 5 consists of a video recording from a handheld camera
of Jackson being transported from the SNF to his cell while
strapped to a gurney. Jackson moved that the video be admitted under the rule of completeness after testimony from Hogan
and Hanner regarding the aftermath of the incident. Exhibit
5 picks up recording after the alleged assault when Jackson
was restrained and removed from the SNF. Jackson’s attorney
agreed with the district court that exhibit 5 did not show any
events prior to or during the alleged assault.
Neb. Rev. Stat. § 27-106 (Reissue 2016) provides that when
part of an act, declaration, conversation, or writing is given
in evidence by one party, the whole on the same subject may
be inquired into by the other. In the present case, the act we
are concerned with is the alleged assault on Hanner which
was entirely captured on another exhibit. Similarly, the events
which would have impacted Jackson’s claim of self-defense all
occurred before or at the time of the alleged assault, thus not
triggering the rule of completeness. Therefore, we determine
that the district court did not abuse its discretion in excluding
exhibit 5.
Sufficiency of Evidence
Jackson argues that there was insufficient evidence to convict him of assault. He specifically argues that at the time
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STATE v. JACKSON
Cite as 26 Neb. App. 727
of the assault, he was not in control of his actions and was
“reacting” to the staff members’ actions, and thus, he did not
intentionally or knowingly harm Hanner. Brief for appellant
at 24. While Jackson did testify that he was reacting, that his
actions were unintentional, and that he did not know Hanner
was standing there, he also testified that he purposely swung
to defend himself. In addition, Hogan said Jackson made the
statement immediately prior to the alleged assault that “if you
put hands on me, I am going to put hands on you.” Based on
this statement of Jackson’s intent at the time of the alleged
assault along with his later testimony, when viewed in the light
most favorable to the prosecution, we conclude that any rational trier of fact could have found that Jackson intentionally or
knowingly unlawfully struck or wounded Hanner.
Excessive Sentence
Jackson’s final assignment of error is that the sentence
imposed by the district court was excessive. Jackson was sentenced to 2 to 4 years’ imprisonment to run consecutive to any
other sentences he was serving. The statutory sentencing guidelines for a Class IIA felony has no minimum sentence and a
maximum of 20 years’ imprisonment. Neb. Rev. Stat. § 28-105
(Reissue 2016). Thus, the district court’s sentence was within
the statutory guidelines.
[10-12] An appellate court will not disturb sentences that are
within statutory limits, unless the district court abused its discretion in establishing the sentence. State v. Decker,
261 Neb.
382,
622 N.W.2d 903 (2001). Where a sentence imposed within
the statutory limits is alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court
abused its discretion in considering and applying the following
factors: the defendant’s age, mentality, education, experience,
and social and cultural background, as well as his past criminal record or law-abiding conduct, motivation for the offense,
nature of the offense, and the amount of violence involved in
the commission of the crime. See
id. An abuse of discretion
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STATE v. JACKSON
Cite as 26 Neb. App. 727
takes place when the sentencing court’s reasons or rulings are
clearly untenable and unfairly deprive a litigant of a substantial
right and a just result. Id.
The district court noted at the sentencing hearing that it considered Jackson’s character and condition, as well as the circumstances of the crime and his history of assaults. Reviewing
the relevant facts ourselves, we acknowledge Jackson’s age
and the extensive time that he has been in the justice system.
However, we concur with the district court that Jackson’s history of assaults and the circumstances surrounding the present
crime necessitate a sentence of imprisonment. The district
court further balanced the sentence between the seriousness of
the crime and the resultant injuries in this case. As such, we
determine that the district court did not abuse its discretion in
sentencing Jackson to 2 to 4 years’ imprisonment.
CONCLUSION
We conclude the district court did not err in denying
Jackson’s request for a jury instruction on self-defense, in
excluding exhibit 5 from evidence, or in the imposition of the
sentence. We further conclude that there was sufficient evidence to convict Jackson of the alleged crime. The order of the
district court is affirmed.
A ffirmed.
