Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/14/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
State of Nebraska, appellee, v.
Lindsay M. Johnson, appellant.
___ N.W.2d ___
Filed April 14, 2023. No. S-22-460.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a
question of law.
3. Trial: Witnesses. It is for the trial court to determine the extent to which
a sequestration order will be applied in a given case.
4. 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.
5. Sentences: Judges: Words and Phrases: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal
in the absence of an abuse of discretion by the trial court. 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.
6. Preliminary Hearings: Plea in Abatement. The proper method of
objecting to trial in the district court for the insufficiency of a preliminary hearing, or the failure to provide one at all, is by motion to quash
or a plea in abatement.
7. Preliminary Hearings: Plea in Abatement: Evidence: Appeal and
Error. Any error by the trial court in overruling a defendant’s plea
in abatement alleging there was insufficient evidence presented at a
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
preliminary hearing to bind the case over for trial is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.
8. Preliminary Hearings: Convictions: Evidence. A failure to hold a
preliminary hearing is cured by a subsequent conviction supported
by sufficient evidence that the defendant is guilty beyond a reasonable doubt.
9. Preliminary Hearings: Convictions: Evidence: Probable Cause. If
the trier of fact, upon sufficient evidence, has found the defendant guilty
of the charged crime beyond a reasonable doubt, the defendant cannot
show prejudice resulting from trial counsel’s failure to object to the lack
of evidence supporting probable cause at a preliminary hearing, or to
object to the failure to hold a preliminary hearing at all.
10. Effectiveness of Counsel: Records: Appeal and Error. The record is
sufficient to review the merits of the ineffective performance claims if
it establishes either that trial counsel’s performance was not deficient,
that the appellant will not be able to establish prejudice as a matter of
law, or that trial counsel’s actions could not be justified as a part of any
plausible trial strategy.
11. Trial: Witnesses. Sequestration is based on the belief that not hearing
other witnesses’ testimony tends to better elicit the truth and promote the
ends of justice.
12. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely
objection waives the right to assert prejudicial error on appeal.
13. Appeal and Error. An appellate court will not consider an argument or
theory that is raised for the first time on appeal.
14. ____. 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.
15. Self-Defense: Jury Instructions. Only where the jury could reasonably
find that the defendant’s use of force was justified should the trial court
instruct the jury on self-defense.
16. Self-Defense: Jury Instructions: Evidence. If the trial evidence does
not support a claim of self-defense, the jury should not be instructed
on it.
17. 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.
18. Self-Defense: Jury Instructions: Evidence. To instruct on self-defense,
it is not enough that the defendant subjectively believed in the need
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
to use force for self-protection; the defendant must produce evidence
that this subjective belief was also objectively reasonable.
19. Sentences. The sentencing court is not limited to any mathematically
applied set of factors.
20. ____. The appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
21. Sentences: Verdicts: Evidence: Presentence Reports. So long as it
does not concern a fact exposing the defendant to a greater punishment
than that authorized by the jury’s guilty verdict, it is not improper for
a sentencing judge to make factual findings for purposes of sentencing
relating to the circumstances of the crime and which are supported by
the evidence at trial, the presentence investigation report, or evidence
submitted at the sentencing hearing.
22. Sentences. In a sentencing hearing, the court generally has broad discretion concerning the scope and type of information to be considered.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl Law Office, for
appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant appeals her conviction and sentence on one
count of assault in the second degree and one count of negligent child abuse. Represented by new counsel, the defendant
asserts trial counsel was ineffective by failing to move to
quash the second count of the operative complaint, because
no preliminary hearing was held in district court to determine
probable cause and no plea was entered on that charge. She
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
also asserts trial counsel was ineffective by failing to ask
more questions during voir dire about two jurors’ relationships
with one of the State’s witnesses. The defendant argues the
trial court erred by excepting from its sequestration order an
eyewitness to the crimes who was the wife of one victim and
mother of the other. She also asserts the court erred by refusing
to give a self-defense instruction. Finally, she argues the court
imposed excessive sentences by giving her jail time rather than
probation. We affirm.
II. BACKGROUND
Lindsay M. Johnson was found guilty following a jury trial
of assault in the second degree and of negligent child abuse.
She was originally charged on July 15, 2020, with one count,
assault in the second degree, in violation of Neb. Rev. Stat.
§ 28-309(1)(a) and (b) (Reissue 2016), a Class IIA felony.
Johnson waived appearance at the arraignment hearing, but did
not waive the preliminary hearing, which was held, and she
entered a plea of not guilty. On March 18, 2021, the State filed
an amended information setting forth the same charges.
1. Count II
On June 1, 2021, the State filed another amended information, this time setting forth two counts. Count I charged assault
in the second degree, in violation of § 28-309(1)(a) and (b), a
Class IIA felony. Count II charged intentional child abuse, in
violation of Neb. Rev. Stat. § 28-707(1)(a) through (f) (Cum.
Supp. 2022), a Class IIIA felony. The State confirmed that
count II was a “direct file” and that a preliminary hearing
had been held only on count I. Defense counsel explained,
“[I]nitially there was a child abuse charge filed at the county
court level and at the prelim that child abuse charge was dismissed. However, the State allegedly has more information
now and has re-filed.”
At a pretrial hearing on June 8, 2021, the State said there
was to be an arraignment on the second charge that day.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
Defense counsel requested a continuance of the previously
scheduled trial, due to the additional charge. The court granted
the continuance and scheduled the arraignment and pretrial
hearing for July 9. However, following a discussion in which
the judge granted a motion to recuse, the judge set trial for
September 13 with a different judge.
The hearing in front of the new judge addressed only
Johnson’s bond. On August 2, 2021, defense counsel appeared
before the court to schedule an evidentiary hearing, noting that
“then we do have a prelim on the child abuse charge.” The
hearing to address all pending matters before trial was scheduled for August 23.
At the hearing on August 23, 2021, the State explained, “We
have the preliminary hearing set today I believe on the child
abuse,” but it did not object to a motion by defense counsel to
continue the scheduled hearing on certain defense motions. All
matters, including the preliminary hearing, were postponed in
order for the defense to hire its own expert. A pretrial conference was set for September 16, when the parties would know
more about the status of the case.
At that pretrial conference, defense counsel noted that “we
have a few motions and a preliminary hearing that we need to
schedule” before the trial. The preliminary hearing and hearing
on defense motions was scheduled for September 30, 2021,
with the understanding that it may have to be rescheduled,
which it apparently was. No hearing is reflected in the record
until December 16. At that hearing, defense counsel, who had
been appointed by the court, moved to withdraw. The court
overruled the motion.
At a hearing on January 27, 2022, defense counsel raised
that the matter needed to be set for trial and “have one date
set for potential other pretrial motions” and a status hearing.
The preliminary hearing to determine probable cause on count
II was not specifically discussed. Bond was raised due to
Johnson’s continuing issues with testing positive for marijuana.
A hearing was scheduled for February 9.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
On February 9, 2022, defense pretrial motions were
addressed. Also discussed was Johnson’s bond. Again, there
was no discussion of a preliminary hearing on count II.
Ultimately, no preliminary hearing on count II is reflected in
the record to have occurred in district court. A formal arraignment was never held, and a plea was never entered to count
II. At no point did defense counsel enter an express waiver of
Johnson’s right to a preliminary hearing on count II. Defense
counsel did not move to quash count II of the amended
information.
2. Jury Selection
During voir dire, the court made numerous general inquiries
of the jurors, including whether any of them knew Johnson,
were biased for or against Johnson or the county attorney’s
office, had formed or expressed an opinion about Johnson,
were related to any of the parties or attorneys, or had any
reason why they could not sit as a fair and impartial juror in
the case. The State, during its voir dire, described who the
witnesses at trial would be and asked whether anyone knew
any of them. One of the jurors said he goes to church with the
State’s proposed witness, Officer Jorge Rodriguez. He did not
think that would affect him one way or another in the case. A
second juror stated he had worked with Rodriguez professionally through his job as a paramedic and firefighter.
Although defense counsel asked several questions of the
venire during his voir dire, no further inquiry was made of
the two jurors regarding how their relationship with Rodriguez
may impact their ability to be a fair and impartial juror. Neither
juror was subjected to peremptory challenges or challenges for
cause. They both were impaneled and took part in convicting Johnson.
3. Sequestration
After opening statements and before the State called its
first witness, the court took up a motion by defense counsel to sequester the witnesses. When asked if it had any
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
objection, the State responded, “No. As I said, I’ll designate Aubrey [Michaels], but, Rodriguez, you’re first anyway.”
Aubrey Michaels is the wife of one the victims and the mother
of the other victim and was a witness to the incident that led to
the State’s charges against Johnson. The court responded, “All
right. If you’re a witness and you have not been designated,
please leave the courtroom at this time.” Johnson did not challenge or object to the State’s “designation” of Aubrey or her
subsequent direct or rebuttal testimony. The record is not clear,
but Aubrey was arguably present in the courtroom during the
presentation of all of the evidence.
4. Trial
Several facts were not in dispute at trial. On September
17, 2019, an altercation occurred between Johnson and Jared
Michaels, which culminated in Johnson’s throwing a metal
folding chair that struck and injured Jared. Jared and Johnson
are stepsiblings.
The incident began in a parking lot. Jared; his wife, Aubrey;
their 5-year-old daughter; and their 1-year-old son had arrived
home from grocery shopping. Jared and Aubrey were unloading
groceries from the back of their van, when Johnson approached
from an alley. The alley separated the building containing a
local bar called the Office Bar from the building where Jared
and his family lived.
Jared had parked facing the side wall of the building containing the Office Bar. The van was parallel to a sidewalk that
ran past the front of the building where the entrance to the
Office Bar was located.
Separating the parking lot from that sidewalk was a concrete
wall, which was 3 feet 6 inches in height. The concrete wall
ran along the sidewalk as a barrier to the parking lot and ended
where the wall joined the front corner of the building containing the Office Bar. Jared and Aubrey’s van was parked in the
second stall from the concrete wall, effectively inside a corner
formed by the side of the building and the concrete wall.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
When Johnson saw Jared and Aubrey’s daughter, Johnson
said something to her. At this point, Jared and Johnson were on
the same side of the concrete wall. Words were then exchanged
between Jared and Johnson. The nature of what was said
was in dispute, but the parties agreed that some of the words
exchanged between Jared and Johnson were not pleasant.
Jared never left the parking lot, but Johnson eventually made
her way to the sidewalk on the other side of the concrete wall.
She walked along that sidewalk, in the direction of the Office
Bar, on the opposite side of the wall from Jared. She eventually reached the end of the concrete wall and went a couple
of steps beyond the parking lot to the front of the Office Bar.
There, she retrieved a metal folding chair. She turned back
toward Jared and hurled the chair over the concrete wall to
where Jared stood on the other side. Then she ran away.
In opening statements, the prosecution asserted that the
words Johnson said to the daughter were very upsetting and that
Jared tried to tell Johnson to watch her language. Eventually,
Johnson threw the chair at Jared’s face, and he suffered injuries
as a result. The prosecution argued that Johnson’s actions had
endangered the daughter’s mental health.
Defense counsel in opening statements disputed that Johnson
said anything inappropriate to the daughter. He admitted there
was an argument between Jared and Johnson, which escalated.
The daughter may have seen the “chair-throwing incident,” but
she was inside the van when that occurred. Defense counsel
argued that when Johnson threw the chair, Jared was following Johnson and Johnson was “just trying to get away from
the situation.”
(a) Rodriguez
Rodriguez was the State’s first witness. He testified that
he arrived at the Michaels’ apartment approximately 45 minutes after the incident in question, after Jared and Aubrey
had stopped at the police station to report the incident. He
testified that the daughter was visibly scared. The daughter
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
related something to him about a “crazy lady” and how “‘daddy
was there to protect them.’” Rodriguez observed that Jared had
a swollen thumb and was bleeding from his shin. During direct,
Rodriguez’ testimony laid foundation for photographs of the
area and of Jared’s injuries, as well as a surveillance video
from across the street. In rebuttal, Rodriguez elaborated that
the alley was more than 5 feet from where the van was parked
in the parking lot.
(b) Aubrey
Aubrey was the second witness to testify. She testified that
she, Jared, and their two children had exited the van and were
unloading groceries from the back of it, when she heard yelling. She watched as Johnson, whom she recognized, walked
from an alley into the parking lot and toward the van.
As Johnson was walking toward Aubrey’s daughter, Johnson
asked the daughter whether Jared and Aubrey were her parents.
When the daughter responded that they were, Johnson said:
“‘They are the worst fucking shittiest parents in the world.
Your mom is a whore. She puts her pussy all over town. Does
your dad put his dick in your mouth? Do you like your dad’s
dick?’” During this time, Jared was trying to tell Johnson to
“watch her language.” Aubrey described that her daughter was
upset and crying.
Aubrey was able to get her children back into the van.
Aubrey testified that as she was getting the children into the
van, Jared placed himself between Johnson and the children.
Johnson spit at Jared and walked out of the parking lot to
the other side of the concrete wall. Aubrey then watched
from inside the van as Johnson walked along the sidewalk
and disappeared from sight as she reached the front of the
Office Bar.
Aubrey thought that Johnson had left and that the confrontation was over. But Aubrey and her daughter watched through
the van window as Johnson picked up a chair sitting outside
the bar and walked toward Jared. Jared, who was about 3
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
feet from Johnson, started walking backward. Johnson then
threw the chair directly at Jared’s head, from a distance of
about 5 feet. Jared was able to deflect the chair with his hand.
The chair fell and hit his leg. After that, Johnson departed.
Aubrey described that her daughter was hysterical, crying
and screaming. Each night for almost a year after the incident,
her daughter woke up crying and screaming, “‘Help me, save
me, she’s coming.’” Aubrey described in some detail how her
daughter, who was 7 years old at the time of trial, continues to
struggle with anxiety and a fear of unknown situations.
(c) Jared
Jared testified that Johnson was approximately 20 to 30
feet from him and his family when he first heard her yelling
and approaching from the alley. At some point, Johnson left
the alley and walked into the parking lot, getting closer to his
daughter at the back of their van. Jared described first hearing
Johnson say in a sarcastic tone, “‘Isn’t this a beautiful family.’” He then described, similarly to Aubrey’s testimony, what
Johnson said to his daughter.
Jared testified, “[A]s soon as I heard the first vulgar word
out of her mouth, I started shouting, ‘Watch your language,’ to
try to drown it out to limit what my daughter did hear.” Jared
described that he just kept saying, “‘Watch your language’”
until Johnson finished, but that he did not do anything else.
Johnson kept walking. After Aubrey and the children were
safely in the van, Jared stepped away from the van “to create
distance of me to the van to just keep her away from my family.” This meant he was walking toward Johnson. As Jared got
closer to Johnson, she spat on him.
During this time, there was some interaction wherein Johnson
told Jared, “‘Didn’t I try to protect you when you were little,’”
and Jared said no. According to Jared, the only time he yelled
was when he had been “trying to drown out the profanities
she was saying to my daughter.” When he was walking toward
Johnson, he was “responding to her only.”
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
Johnson continued to walk away and out of the parking lot.
She then walked along the sidewalk that ran along the other
side of the concrete wall and toward the Office Bar. Jared, who
was still engaged with Johnson from the other side of the wall,
told Johnson “to go be a good mother because no good mother
would say those things.” According to Jared, Johnson turned
around, grabbed a chair, and threw it at him.
Jared explained that when Johnson threw the chair, he
stepped back off a curb he was apparently standing on at the
time, so that he would not fall. When he was hit by the chair,
Jared was approximately 5 feet from Johnson. Jared never went
to the other side of the concrete wall. Jared described his injuries from being hit by the chair and the negative impact of the
incident on his daughter’s mental health.
(d) Johnson
Johnson testified in her own defense, describing that it
was coincidental that she ran across Jared and his family on
September 17, 2019. She testified she was walking through the
alley near the Office Bar, when she saw two figures outside
of a van. She then recognized the daughter, who jumped out
of the van to wave at her “really excitedly.” She explained the
daughter had been inside the van in the back seat with the door
open. Johnson often saw Jared and Aubrey’s daughter, because
she went to the same daycare as Johnson’s son. According to
Johnson, “[s]he’d always wave at me at daycare.”
Johnson said she spoke to the daughter on the day in question only because “she was happy to see me and waving at
me.” Johnson did not stop but continued walking as she asked
the daughter whether this was her family. When the daughter said it was, Johnson said she had a “picture perfect family.” Johnson denied making any inappropriate remarks to the
daughter. Johnson testified that when she said that, Jared told
her, “‘You do not talk to my daughter. You do not talk to my
wife. You do not talk to my family.’”
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
Johnson testified that Aubrey took the children into the van,
grabbing the daughter’s arm and saying, “‘I told you not to talk
to that crazy lady.’” Johnson testified she never saw the daughter cry, but imagined that was the cause if she did. Johnson
testified she continued to walk past the van and move away
from Jared and his family, telling Jared to stop following her.
Her path was not blocked by Jared.
Johnson testified that she tried to cross the street to get further away, but that traffic did not allow her to. Jared kept following her, and she again asked him to stop. Johnson walked
along the sidewalk separated from the parking lot by the concrete wall, in the direction of the Office Bar, while Jared stayed
on the parking lot side.
Johnson testified that when Jared told her to be a good
mother, she responded by telling Jared he “could be a good parent by getting his dick out of his daughter’s mouth.” Johnson
testified that Jared then started “pounding his hands and fists
like in a fist motion on the concrete and following me down”
the street from the other side of the wall, telling her that she
was going to regret saying that. Jared also told her that she was
“‘batshit crazy,’” her mom was a “‘nutbag,’” and she was a
“‘whore that spreads her legs all over town,’” “‘[j]ust like your
kids’ dad said . . . .’”
Johnson admitted that Jared never left the area between
the van and the wall. Nevertheless, she was very scared and
wanted to distract Jared. She was afraid that Jared, who was
6 feet 4 inches tall, was going to jump over the wall and
“punch” her. Johnson testified that she grabbed a chair from in
front of the bar, went back toward Jared a couple of steps, and
threw it “on the barricade,” in the direction of Jared. Johnson
testified she was not trying to hit Jared. Johnson then “took
off running.”
(e) Rebuttal
The State called Aubrey as a rebuttal witness. Aubrey
denied that her daughter approached Johnson or that she had
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
jerked her daughter’s arm in order to get her back into the van.
Aubrey testified that although she could see Jared at the corner
of the parking lot on the other side of the concrete wall from
Johnson, she never saw Jared pound his hands on the wall or
otherwise threaten Johnson.
Jared was also called to testify on rebuttal. He stated that
he did not tell Johnson she would “‘regret this’” or otherwise threaten force against Johnson, chase her, pound his fists
against the concrete wall, or try to jump the concrete wall. He
also denied that his daughter approached Johnson or that his
daughter had ever even met Johnson, stating, “My daughter
does not know who she is and I’ve made it my goal in life for
that to be the case.” Jared said his daughter went to school in
a different part of the same building where Johnson’s son went
to preschool.
(f) Video Surveillance
Surveillance video from a nearby business is somewhat difficult to decipher but generally confirms the location of the
parties and the van and that there was some traffic on the street
when Johnson exited the parking lot. After Johnson exited
the parking lot and started walking along the sidewalk, Jared
stayed in the parking lot between the van and the concrete
wall. Jared and Johnson appear engaged with each other from
across the wall, both moving back and forth, before Johnson
went decidedly in the direction of the Office Bar, apparently
retrieved the chair, and threw it at Jared.
5. Closing Arguments and
Jury Instructions
In closing arguments, defense counsel argued that Johnson
did not intentionally or knowingly cause Jared bodily injury.
Instead, she threw the chair at the barricade as a way to
distract Jared so that she could get away. Whether Johnson
acted recklessly was a different question. With respect to the
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
charge of child abuse, defense counsel argued Johnson never
said the things that Jared and Aubrey accused her at trial of
saying. Defense counsel continued, “I’m not going to argue
about the fact that [the daughter] went to counseling.” But
defense counsel pointed out Johnson did not know the daughter
was still watching from the van when she threw the chair, so
she did not intentionally or knowingly place the daughter in
that situation.
With respect to count I, the court instructed on the lesser-included offense of assault in the third degree. With respect to
count II, it instructed on the lesser-included offense of negligent child abuse.
The court refused defense counsel’s requested self-defense
instruction. It reasoned that there was no evidence at trial
supporting “a verbal or physical threat of harm or any actual
harm that would justify the use of immediate physical force by
[Johnson] toward Jared.” The court said that even assuming
Johnson’s testimony to be true that Jared told her she would
regret saying what she did and pounded his fists on top of the
concrete wall, Johnson left the area where Jared was to retrieve
the chair. She then returned to Jared to throw it in his direction.
The court said that, thus, even under Johnson’s own testimony,
she was the “first aggressor.”
The jury found Johnson guilty of assault in the second
degree. It found Johnson not guilty of intentional child abuse,
but guilty of negligent child abuse.
6. Sentencing
The court sentenced Johnson to concurrent sentences of 6
months in jail on the conviction of second degree assault and
10 months in jail on the conviction of negligent child abuse.
At the sentencing hearing, the court acknowledged that
there was nothing in Johnson’s criminal history involving
assault or abuse and that she did not “seem to be the type of
person to have done this by looking at your prior criminal
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314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
history.” The court also noted there did not seem to be a lot
of substance abuse problems in Johnson’s life other than with
marijuana. The presentence investigation report (PSI) showed
Johnson had been employed with her current employer for
11 years.
The PSI showed Johnson had a criminal history of traffic
violations, including willful reckless driving, disturbing the
peace, obstructing a police officer, resisting arrest, and shoplifting. She scored in the low risk level for criminal history;
the medium risk level for education/employment, companions, and alcohol/drug problems; a high risk level for leisure/
recreation; and very high in procriminal attitude and anti
social pattern.
The court stated at the hearing that it had to “adhere to the
jury’s findings and their conclusions. And they came to the
conclusion that you did say those things to the girl, that you
abused her in that way.” It went on to state, “[H]onestly, I
tended to agree with the jury’s findings in that regard.” What
the court found the “most disturbing . . . was the things that
were said in front of the child.”
The court also noted that while Johnson claimed she was
scared of Jared and trying to get away, she was past the edge of
the wall where it met the building, and thereby “away,” when
she decided to pick up a chair and go back to where she could
throw it toward Jared. The court explained:
I don’t agree that you did that sort of because you were so
fearful and wanted to get away and didn’t know what else
to do and sort of did that as a reaction to that. I think you
were away and then saw the chair and thought “I’m going
back.” That’s how the facts were laid out. So, I don’t
really feel like there is a real belief on your part that you
really did anything wrong here.
In general, the court said that “the impression that I got”
from the evidence at trial and the PSI was that Johnson
did not feel she had done anything wrong. The court did
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. JOHNSON
Cite as 314 Neb. 20
not think Johnson was likely to respond positively to probationary treatment, because she did not seem very amenable to
the structure of such programming in that she did not think she
had done anything wrong. Finally, the court said that a sentence less than incarceration would depreciate the seriousness
of the crimes and promote disrespect for the law.
In its sentencing order, the court reiterated that there were
substantial and compelling circumstances such that Johnson
was not a suitable candidate for probation and that a sentence
lesser than incarceration would depreciate the seriousness of
the offense and promote disrespect for the law. The court also
found that there was a substantial risk Johnson would engage
in additional criminal conduct during any period of probation and that she was in need of correctional treatment which
could be provided most effectively by commitment to a correctional facility.
III. ASSIGNMENTS OF ERROR
Johnson assigns that the district court erred by (1) failing
to instruct the jury on self-defense; (2) failing to sequester a
State’s witness at Johnson’s request, in violation of Neb. Rev.
Stat. § 27-615 (Reissue 2016); and (3) imposing excessive
sentences. Johnson assigns that trial counsel was ineffective
by failing to (1) file a motion to quash the amended complaint
and (2) ensure that an impartial jury was impaneled for trial.
We disregard an assignment of error which Johnson abandoned
in her reply brief.
IV. STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the
court below. 1
1
State v. Loyd, 275 Neb. 205,
745 N.W.2d 338 (2008).
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[2] Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. 2
[3] It is for the trial court to determine the extent to which a
sequestration order will be applied in a given case. 3
[4] 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. 4
[5] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 5 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. 6
V. ANALYSIS
1. Lack of Preliminary Hearing
on Count II
Johnson asserts that trial counsel was ineffective by failing
to move to quash count II of the information on the grounds
that no preliminary hearing had been held or waived. In spite
of the State’s assertion otherwise at oral arguments, the record
on appeal does not show that a preliminary hearing was held.
Johnson relies on a Nebraska case stating that a district court
lacks jurisdiction to try an individual on a felony charge unless
the accused has been accorded the privilege of a preliminary
hearing or waives the same.
2
State v. Miranda, 313 Neb. 358,
984 N.W.2d 261 (2023).
3
State v. Trail, 312 Neb. 843,
981 N.W.2d 269 (2022).
4
State v. Case, 304 Neb. 829,
937 N.W.2d 216 (2020).
5
State v. Greer, 312 Neb. 351,
979 N.W.2d 101 (2022).
6
Id.
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The foundation of Johnson’s argument lies in an 1889 decision that we overruled in 1895. In White v. State, 7 we held that
a district court had no jurisdiction to try an accused person
until a preliminary examination had been held according to
law. But in Coffield v. State, 8 we overruled this holding from
White. In doing so, we said that the “failure to give a prisoner
a preliminary examination does not oust the district court of
jurisdiction” but is a “mere defect in the proceedings,” which,
pursuant to
Neb. Rev. Stat. § 29-1812 (Reissue 2016), may
be excepted to by a motion to quash, a plea in abatement, a
demurrer to the indictment, or a plea in bar, and the accused
will be deemed to have waived the defect if the objection is
not timely made. 9 Thus, over a century ago, we rejected the
jurisdictional argument. In three later cases (which include the
case Johnson cites), 10 we allowed this language of jurisdiction
to seep back into a discussion of preliminary hearings. We
now expressly disapprove those cases to the extent that they
do so.
[6-8] The proper method of objecting to trial in the district
court for the insufficiency of a preliminary hearing, or the
failure to provide one at all, is by a timely motion to quash
or a plea in abatement. 11 Any error by the trial court in overruling a defendant’s plea in abatement alleging there was
insufficient evidence presented at a preliminary hearing to
bind the case over for trial is cured by a subsequent finding at
trial of guilt beyond a reasonable doubt which is supported
7
White v. State, 28 Neb. 341,
44 N.W. 443 (1889). See Latimer v. State,
55
Neb. 609,
76 N.W. 207 (1898).
8
Coffield v. State, 44 Neb. 417,
62 N.W. 875 (1895).
9
Id. at 421,
62 N.W. at 876.
10
See, State v. Hill, 255 Neb. 173,
583 N.W.2d 20 (1998); State v. Kelley,
211 Neb. 770,
320 N.W.2d 455 (1982), disapproved on other grounds,
State v. Wright, 261 Neb. 277,
622 N.W.2d 676 (2001); State v. Forbes,
203 Neb. 349,
278 N.W.2d 615 (1979).
11
State v. Hill, supra note 10. See State v. Howard,
184 Neb. 274,
167
N.W.2d 80 (1969).
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by sufficient evidence. 12 Likewise, a failure to hold a preliminary hearing is cured by a subsequent conviction supported by
sufficient evidence that the defendant is guilty beyond a reasonable doubt. Conducting a preliminary hearing after a trial
would not only serve no purpose, but it “would compound the
degradation and expense that the preliminary hearing serves to
protect against.” 13
[9] It necessarily follows that if the trier of fact, upon sufficient evidence, has found the defendant guilty of the charged
crime beyond a reasonable doubt, the defendant cannot show
prejudice resulting from trial counsel’s failure to object to
the lack of evidence supporting probable cause at a preliminary hearing, or to object to the failure to hold a preliminary
hearing at all. Accordingly, in State v. Nesbitt, 14 we found
that the court properly denied, without an evidentiary hearing, the defendant’s claim that trial counsel was ineffective
for not timely filing a plea in abatement challenging the probable cause to believe he had committed the charged crime,
because the jury’s finding of guilt beyond a reasonable doubt
“resolved any questions about whether probable cause existed
to bind [the defendant] over for trial.” Similarly, in State v.
Hubbard, 15 we determined on direct appeal that because the
defendant was ultimately found to be guilty beyond a reasonable doubt, he would not, as a matter of law, be able to establish prejudice from trial counsel’s allegedly deficient conduct
of failing to move to quash or file a plea in abatement. We
explained that even if the court had failed to consider whether
there was probable cause to bind the defendant over for trial,
12
E.g., State v. Green, 287 Neb. 212,
842 N.W.2d 74 (2014); State v. Nesbitt,
264 Neb. 612,
650 N.W.2d 766 (2002); State v. Boppre,
234 Neb. 922,
453
N.W.2d 406 (1990); State v. Baker,
224 Neb. 130,
395 N.W.2d 766 (1986);
State v. Franklin, 194 Neb. 630,
234 N.W.2d 610 (1975). See, also, State
v. Chauncey, 295 Neb. 453,
890 N.W.2d 453 (2017).
13
State v. Aleh, 357 P.3d 12, 16 (Utah App. 2015).
14
State v. Nesbitt, supra note 12,
264 Neb. at 620,
650 N.W.2d at 777.
15
State v. Hubbard, 267 Neb. 316,
673 N.W.2d 567 (2004).
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“any defect in the waiver of a preliminary hearing to determine
probable cause is cured by a jury’s later verdict finding the
defendant guilty beyond a reasonable doubt.” 16 The defendant
“was not prejudiced because he was found guilty.” 17
[10] The record is sufficient to review the merits of the
ineffective performance claims if it establishes either that
trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law,
or that trial counsel’s actions could not be justified as a part
of any plausible trial strategy. 18 The jury’s verdict cured any
defect of failing to hold a preliminary hearing on count II and
established, as a matter of law, that Johnson will not be able
to establish prejudice from trial counsel’s allegedly deficient
conduct in failing to move to quash the information on count II
for the lack of a preliminary hearing. We find no merit to this
claim of ineffective assistance of trial counsel.
2. Trial Counsel’s Failure to
Ensure Impartial Jury
Johnson also claims ineffective assistance of trial counsel
in relation to the voir dire. Two of the impaneled jurors stated
they had a personal relationship with one of the State’s witnesses, and she argues trial counsel was ineffective by failing
to ask followup questions about those relationships and how
they may impact the jurors’ ability to be fair and impartial.
She argues that “[i]t is fair to reason” that the jurors “would
be inclined to give more weight and trust to the testimony of
. . . Rodriguez due to their relationship.” 19 Thus, she argues
she was prejudiced. Johnson also makes a more general
claim of ineffective assistance, because trial counsel asked
the full jury panel only six questions and trial counsel’s
16
Id. at 326, 673 N.W.2d at 577.
17
Id.
18
See State v. Miranda, supra note 2.
19
Brief for appellant at 27.
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examination of the jury panel took up only two pages of the
bill of exceptions.
We pointed out recently in a claim of ineffective assistance
on direct appeal, based on defense counsel’s relatively brief
voir dire compared to the State’s examination, that “brevity alone is not enough to show that his trial counsel’s performance was deficient.” 20 We concluded that such a claim
lacked sufficient specificity. 21 We likewise find here that
Johnson failed to sufficiently raise an ineffective assistance
claim based on a general failure to ask more questions during
voir dire.
Johnson has sufficiently raised a claim of ineffective assist
ance of trial counsel regarding the two jurors who said they
knew Rodriguez, but she cannot show prejudice from the
failure to ask those jurors more followup questions. Even if
more questioning would have confirmed a significant bias, and
that bias caused those jurors to unduly trust in the veracity of
Rodriguez’ testimony, the record shows that Rodriguez did not
testify as to any matter in dispute at trial. Rodriguez was not a
witness to the incident. He merely testified as to the daughter’s
demeanor after the incident, Jared’s injuries, and the layout of
the physical scene. The defense did not dispute any of these
matters. There is no merit to Johnson’s claim that trial counsel
was ineffective in failing to ask the two jurors followup questions about their relationships to Rodriguez and how those may
impact their ability to be fair and impartial.
3. Sequestration
We turn to Johnson’s assertion that the trial court erred
in refusing to sequester Aubrey, who testified after hearing
Rodriguez’ testimony and again in rebuttal. Before the State
called its first witness, the court granted defense counsel’s
motion to sequester the witnesses, but granted the State’s
20
State v. Miranda, supra note 2,
313 Neb. at 374,
984 N.W.2d at 275.
21
See id.
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request to designate Aubrey as an exception to the sequestration order.
[11] Sequestration is based on the belief that not hearing
other witnesses’ testimony tends to better elicit the truth and
promote the ends of justice. 22 Section 27-615 states:
At the request of a party the judge shall order witnesses
excluded so that they cannot hear the testimony of other
witnesses, and he may make the order on his own motion.
This rule does not authorize exclusion of (1) a party who
is a natural person, or (2) an officer or employee of a
party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence
is shown by a party to be essential to the presentation of
his cause.
[12-14] While it is unclear how Aubrey falls under
§ 27-615(1) through (3), Johnson did not object at any point
before or during the trial to the court’s decision to exempt
Aubrey from sequestration. A litigant’s failure to make a
timely objection waives the right to assert prejudicial error on
appeal. 23 An appellate court will not consider an argument or
theory that is raised for the first time on appeal. 24 Thus, 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. 25 We conclude that Johnson failed to preserve this
issue for appellate review.
4. Self-Defense Instruction
[15,16] Johnson argues the trial court erred in failing to
instruct the jury on self-defense. To establish reversible error
22
State v. Trail, supra note 3.
23
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733,
956 N.W.2d
692 (2021).
24
Id.
25
Id.
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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. 26 It
is not enough to merely show “‘any evidence’” of self-defense
to support an instruction thereon. 27 Instead, the defendant must
show “‘any evidence in support of a legally cognizable theory
of self-defense.’” 28 Only where the jury could reasonably find
that the defendant’s use of force was justified should the trial
court instruct the jury on self-defense. 29 If the trial evidence
does not support a claim of self-defense, the jury should not be
instructed on it. 30
Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides in
relevant part that “the use of force upon or toward another
person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the
present occasion.” Section 28-1409(5) provides that when the
force is not deadly or used to resist another’s occupation of
property under a claim of right, “a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used,
without retreating, surrendering possession, doing any other
act which he has no legal duty to do, or abstaining from any
lawful action.”
[17,18] We have interpreted § 28-1409 to mean that 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
26
State v. Case, supra note 4.
27
Id. at 843, 937 N.W.2d at 226.
28
Id.
29
State v. Case, supra note 4.
30
State v. Iromuanya, 272 Neb. 178,
719 N.W.2d 263 (2006).
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immediately necessary and justified under the circumstances. 31
To instruct on self-defense, it is not enough that the defend
ant subjectively believed in the need to use force for self-protection; the defendant must produce evidence that this subjective belief was also objectively reasonable. 32
Johnson admitted Jared never left the area between the van
and the concrete wall. Based on Jared’s allegedly pounding
his fists on top of the wall while telling her she was going to
regret saying what she did, Johnson testified she was afraid
Jared was going to jump over the wall and “punch” her. Even if
it was reasonable to infer that Jared was physically capable of
jumping over the wall and that Johnson subjectively feared he
would do so and then hit her, there was no evidence that Jared
had made any move to jump over the wall or had threatened
to jump over the wall when Johnson decided to throw a chair
at him. As such, even resolving all reasonable inferences in
Johnson’s favor, the evidence does not support a “reasonable
and good faith belief” that force was “immediately necessary”
for Johnson to protect herself against the use of unlawful force
by Jared.
Relatedly, the evidence does not support the conclusion that Johnson’s act of throwing the chair at Jared was
justified under the circumstances. We have explained that
“[i]f a defendant has unjustifiably placed himself or herself
in harm’s way, a court may properly find that such facts do
not support a lawful claim of self-defense.” 33 Thus, in State v.
Marshall, 34 an instruction on self-defense was properly denied
when the defendant had voluntarily put himself in a position of danger by going outside of his home to confront two
men and there was no evidence that anything prevented him
31
State v. Case, supra note 4.
32
See State v. Eagle Thunder, 201 Neb. 206,
266 N.W.2d 755 (1978).
33
State v. Urbano, 256 Neb. 194, 201,
589 N.W.2d 144, 151 (1999). Accord
State v. Case, supra note 4.
34
State v. Marshall, 253 Neb. 676,
573 N.W.2d 406 (1998).
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from remaining safely in his home. Similarly, in State v.
Case, 35 the evidence did not support a self-defense instruction
when the defendant left the safety of his jail cell and walked
directly up to the victim, who allegedly made the first move
toward the defendant thereafter. The use of force was not justified under the circumstances.
Johnson’s act of taking a couple of steps beyond the parking lot before returning toward Jared is perhaps distinct from
these scenarios, but her act of throwing the chair at Jared was
equally unjustified. As discussed, she was never in immediate
harm’s way. When she went in the direction of the chair and
beyond the parking lot, Jared did not jump over the wall to
pursue her. Instead, Johnson walked back toward Jared, where
Jared continued to stand on the other side of the wall, and
hurled a chair at him.
We agree with the trial court that even if the evidence is
viewed consistent with Johnson’s testimony, Jared’s following along the other side of the wall while pounding his fists
and saying Johnson would regret what she said did not legally
justify the use of immediate physical force by Johnson toward
Jared. The evidence at trial did not allow a reasonable inference
that Johnson acted in self-defense. The court did not abuse its
discretion in refusing to give a self-defense instruction.
5. Excessive Sentences
Lastly, we address Johnson’s assignment of error that the
court imposed excessive sentences. A sentence imposed within
the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. 36 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. 37
35
State v. Case, supra note 4.
36
State v. Greer, supra note 5.
37
Id.
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Johnson’s concurrent sentences of 6 months in jail on the
conviction of second degree assault and 10 months in jail
on the conviction of negligent child abuse were well within
the statutory limits.
Neb. Rev. Stat. § 28-105(1) (Cum. Supp.
2022) authorizes a maximum sentence of 20 years’ imprisonment with no minimum sentence for Class IIA felonies.
Neb.
Rev. Stat. § 28-106(1) (Reissue 2016) authorizes a maximum
sentence of not more than 1 year’s imprisonment with no minimum sentence for Class I misdemeanors.
Johnson argues that the court abused its discretion by
imposing imprisonment rather than probation.
Neb. Rev. Stat.
§ 29-2260(2) (Reissue 2016) describes that for a sentence for
an offender convicted of either a misdemeanor or a felony for
which mandatory or mandatory minimum imprisonment is
not specifically required, the court may withhold sentence of
imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of
the offender, the court finds that imprisonment of the offender
is necessary for protection of the public because (a) the risk is
substantial that during the period of probation the offender will
engage in additional criminal conduct, (b) the offender is in
need of correctional treatment that can be provided most effectively by commitment to a correctional facility, or (c) a lesser
sentence will depreciate the seriousness of the offender’s crime
or promote disrespect for law.
Section 29-2260(3) sets forth several grounds that while
not controlling the discretion of the court, shall be accorded
great weight in favor of withholding a sentence of imprisonment: (a) the crime neither caused nor threatened serious
harm; (b) the offender did not contemplate that his or her
crime would cause or threaten serious harm; (c) the offender
acted under strong provocation; (d) substantial grounds were
present tending to excuse or justify the crime, though failing
to establish a defense; (e) the victim of the crime induced or
facilitated commission of the crime; (f) the offender has compensated or will compensate the victim of his or her crime
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for the damage or injury the victim sustained; (g) the offender
has no history of prior delinquency or criminal activity and
has led a law-abiding life for a substantial period of time
before the commission of the crime; (h) the crime was the
result of circumstances unlikely to recur; (i) the character and
attitudes of the offender indicate that he or she is unlikely to
commit another crime; (j) the offender is likely to respond
affirmatively to probationary treatment; and (k) imprisonment of the offender would entail excessive hardship to his or
her dependents.
[19,20] The sentencing court is not limited to any mathematically applied set of factors. 38 The appropriateness of the
sentence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life. 39
Johnson focuses on her allegation that in reaching the decision to impose imprisonment rather than probation, the trial
court improperly engaged in speculation as to the factual
basis of the jury’s verdict and her motives. She first argues
that the court improperly concluded the jury found Johnson
made disparaging comments to Jared and Aubrey’s daughter,
when the jury could have instead found her guilty based on
the daughter’s witnessing Johnson throw the chair at Jared.
Second, Johnson argues the trial court improperly engaged in
speculation and factual finding by determining that Johnson
did not throw the chair at Jared because she was afraid;
rather, she was “away and then saw the chair and thought ‘I’m
going back.’”
[21,22] So long as it does not concern a fact exposing the
defendant to a greater punishment than that authorized by
the jury’s guilty verdict, it is not improper for a sentencing
38
Id.
39
Id.
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judge to make factual findings for purposes of sentencing relating to the circumstances of the crime and which are supported
by the evidence at trial, the PSI, or evidence submitted at the
sentencing hearing. 40 In a sentencing hearing, the court generally has broad discretion concerning the scope and type of
information to be considered. 41
We disagree with Johnson that the judge’s sentence of
imprisonment was improperly based in unlawful speculation,
because the judge said he must adhere to the jury’s findings
and the jury came to the conclusion that Johnson had made
abusive comments to Jared and Aubrey’s daughter. Rather, it
appears from the context that the judge independently reached
the conclusion, based on the evidence at trial and the PSI,
that Johnson made abusive statements to the child. This was
a proper finding to be considered in sentencing. Likewise, the
judge did not abuse his discretion in finding that Johnson was
“away” and returned to assault Jared and did not simply act
out of fear. Such a conclusion is adequately supported by the
record and was a proper consideration in sentencing.
The sentencing judge also made several findings not specifically challenged in this appeal. It found that Johnson did not
feel she had done anything wrong. The judge found Johnson
was unlikely to respond positively to probationary treatment,
because she did not seem very amenable to the structure of
such programming and she did not think she had done anything wrong. The judge found that there was a substantial
risk Johnson would engage in additional criminal conduct
during any period of probation and that she was in need of
correctional treatment, which could be provided most effectively by commitment to a correctional facility. Finally, the
40
See A.L.I., Model Penal Code: Sentencing § 7.07A (Tentative Draft No. 1
2007).
41
See State v. Jackson, 225 Neb. 843,
408 N.W.2d 720 (1987), overruled on
other grounds, State v. Garza, 236 Neb. 202,
459 N.W.2d 739 (1990).
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judge found that a sentence less than incarceration would
depreciate the seriousness of the crimes and promote disrespect
for the law.
The court did not abuse its discretion in determining Johnson
was not a suitable candidate for probation.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
