IRWIN, Judge.
Jamaal R. Abram appeals his convictions and sentences on three charges: attempted first degree murder, use of a weapon in the commission of a felony, and conspiracy to commit first degree murder. On appeal, Abram asserts that there was insufficient evidence to support the attempted first degree murder and conspiracy convictions and asserts that the court imposed excessive sentences on the three convictions. We find that the State adduced sufficient circumstantial evidence to support the convictions, through testimony of others involved in the incident and the victim herself, and in light of the seriousness of the crimes, we find no abuse of discretion in the sentences imposed. We affirm.
The events giving rise to the charges in this case occurred in Omaha, Nebraska, on June 23, 2008. On that date, the victim, Sarah Schramm (Sarah), was at a cemetery visiting the grave of her boyfriend, Tieres Abram, a cousin of Abram, who had committed suicide approximately 1 year prior. While she was at the cemetery, she was confronted by Abram's brother Jerrell Abram and three female companions, and the events giving rise to the charges in this case began. In a light most favorable to the State, the testimony adduced at trial indicates the following happened:
When Jerrell and his companions arrived at the cemetery and observed Sarah at Tieres' gravesite, Jerrell became angry and confronted Sarah; a large portion of Tieres' extended family believed that Sarah was somehow to blame for Tieres' death. According to Jerrell, he used his cellular telephone to call Abram on Abram's cellular telephone. Jerrell testified that if anyone in the family encountered Sarah, he or she was to "get her" to Tieres' mother, because Tieres' mother wanted to talk to her. He testified that Abram instructed him to take Sarah from the cemetery.
Jerrell informed Sarah that she had to go with him, and she resisted. Jerrell grabbed Sarah's belt and pulled her toward his vehicle until Sarah indicated that she would get into the vehicle on her own. Jerrell took Sarah's car keys and gave them to his female companions, along with a pair of sweatpants, and Jerrell instructed the female companions to take the car and to use the sweatpants to avoid leaving fingerprints. Jerrell also broke Sarah's cellular telephone before leaving the cemetery.
Jerrell drove Sarah to various locations over the course of the next several hours. Jerrell and Abram spoke on their cellular telephones on numerous occasions during this time, and Jerrell testified that Abram directed him where to go. Sarah testified that there were numerous brief telephone conversations while she was in the back seat of Jerrell's vehicle. According to Jerrell, he believed the entire time that he was taking Sarah to meet with Tieres' mother and he was waiting to find out where she was. According to Jerrell, Sarah was crying and seemed scared during the time she was in the back seat of his vehicle.
Eventually, Jerrell received a telephone call from Tieres' brother, Rayshawn Abram, on Abram's cellular telephone, directing Jerrell to take Sarah to a location near 56th and Sorenson Streets in Omaha. Jerrell testified that the location was a dead-end street behind an auto repair shop and that when he arrived, he observed Rayshawn's vehicle backed into the end of the dead end. Jerrell did not see anyone in Rayshawn's vehicle, and he parked his vehicle facing Rayshawn's vehicle. Sarah testified that the location was "real isolated" and that "[t]here was really nothing around."
After Jerrell parked, Abram came out of some bushes by the side of the street, dressed all in black and wearing gloves, with a small revolver. Both Jerrell and Sarah testified that they recognized Abram, despite his wearing all black clothing and attempting to hide his identity. When Abram reached Jerrell's vehicle, Jerrell unlocked the doors and Abram pulled Sarah out of the back seat of the vehicle and placed the gun directly against her back. Sarah testified that Abram asked her, "what did you do to my cousin, bitch," and that he nudged her forward with the gun against her back. Sarah testified that she told Abram, "Sauce, why didn't you just talk to me about this? Why didn't you just talk to me about it?" According to Sarah, as soon as she said that, Abram said, "[B]itch, don't say my name, and he pulled the trigger and started shooting [her]." Sarah testified that Abram yelled, "you're gonna die, bitch, or die, bitch" while shooting her.
Abram shot Sarah in the back once, and she fell to the ground. She testified that she did not feel anything after the first shot, but she heard gunshots as he "just kept shooting." Jerrell testified that he believed Abram pulled the trigger five to seven times. Sarah testified that she "just laid there and didn't move" and that she "wasn't trying to breathe." Jerrell testified that Sarah was lying still and that he assumed she was dead.
Abram and Rayshawn then left in Rayshawn's vehicle, and Jerrell left in his vehicle. Jerrell testified that Abram stopped and threw the gun into a storm sewer and that they then went to Abram's mother's house and burned the black clothes Abram had been wearing. Abram, Jerrell, Rayshawn, and another individual then drove around for some time, and Rayshawn indicated that they should not say anything about what happened. Later that night, Jerrell obtained the keys to Sarah's car, covered the steering wheel to prevent fingerprints being left behind, and drove the car to a location on 33d Street in Omaha near Metro Community College, left the car there, and tossed the keys while walking home. The next morning, Jerrell discovered that Sarah had survived and spoke with Abram about it, and the two agreed not to do anything and "just kept going on about [their] business."
Sarah testified that when she was aware that the vehicles had left the area, she managed to stand up and walk, "just hoping somebody was outside" in the area. She came across two men playing basketball and asked for help. She testified that she "was having a really hard time breathing and [she] just kind of fell to [her] knees." The next thing she remembered was hearing the police and ambulance arrive. When the responders arrived and asked Sarah who had shot her, she said that "it was Jamaal Abram."
Dr. Robert Bertelotti testified that he was the surgeon who attended to Sarah the night she was brought to a hospital after being shot. Bertelotti identified four gunshot wounds to Sarah's torso and testified that she arrived in a significant amount of distress, having difficulty breathing and a great deal of pain. A breathing tube had to be inserted, and a CAT scan was done, revealing that projectiles had traversed Sarah's abdomen and chest. Surgery was immediately required. Among the internal injuries suffered from the path of the projectiles were a penetration of the diaphragm, an injury to a fatty layer between the stomach and the colon, a wound near the top side of the stomach and another near the bottom of the stomach, a small graze to the liver, and a penetration of the lung. One bullet had to be left in Sarah's shoulder because it was potentially more dangerous to remove it. Dr. Bertelotti testified that the injuries Sarah suffered were life threatening.
Sarah testified that she was in intensive care for 9 days after this incident and that she had a police guard outside her hospital room 24 hours a day. She testified that at the time of trial, she was doing well physically, but still experienced mental and emotional problems as a result of the incident.
On October 9, 2008, the State charged Abram by information with attempted murder in the first degree, use of a deadly weapon in the commission of a felony, and criminal conspiracy. At the conclusion of the trial, the jury returned verdicts of guilty on all three charges. The court sentenced Abram to consecutive sentences of 40 to 50 years' imprisonment, 40 to 50 years' imprisonment, and 20 to 30 years' imprisonment, on the three convictions. This appeal followed.
Abram assigns two errors on appeal. First, Abram asserts that there was insufficient evidence to support the convictions for attempted first degree murder and criminal conspiracy. Second, Abram asserts that the sentences imposed were excessive.
1. SUFFICIENCY OF EVIDENCE
Abram first asserts that the State failed to adduce sufficient evidence to support convictions for attempted first degree murder and criminal conspiracy. After reviewing the record presented on appeal, we find that there was sufficient evidence to support the jury's factual conclusions that Abram was guilty of both offenses.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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. State v. Tucker, 278 Neb. 935, 774 N.W.2d 753 (2009); State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009). In making this determination, the court should not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence, as these matters are for the finder of fact. Id.
One accused of a crime may be convicted on the basis of circumstantial evidence if the evidence, viewed as a whole, establishes guilt beyond a reasonable doubt, and whether a defendant possesses the requisite state of mind is a question of fact which may be proven by circumstantial evidence. State v. Schwab, 235 Neb. 972, 458 N.W.2d 459 (1990).
Abram first challenges the sufficiency of the evidence to support his conviction for attempted first degree murder. In this regard, Abram argues that there was no evidence presented to the jury concerning any plan to do physical harm to Sarah prior to the actual shooting, that there was no evidence adduced concerning his state of mind, and that there was not sufficient evidence to demonstrate that he intended to kill Sarah when shooting her. We reject all of these assertions.
A defendant's conduct rises to criminal attempt if he or she intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime. State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009). Conduct shall not be considered a substantial step unless it is strongly corroborative of the defendant's criminal intent. Id. Whether a defendant's conduct constitutes a substantial step toward the commission of a particular crime and is an attempt is generally a question of fact. Id.
Neb. Rev. Stat. § 28-303 (Reissue 2008) sets forth the statutory requisites for a finding that a defendant is guilty of first degree murder. Section 28-303 indicates that a person commits murder in the first degree if he or she kills another person purposely and with deliberate and premeditated malice. In this provision, deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act. State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008). Premeditated means the actor has formed a design to commit an act before it is done. Id. A person kills with premeditated malice if, before the act causing the death occurs, the person has formed the intent to determine to kill the victim without legal justification. Id. It is for the jury to determine whether the defendant acted with premeditation. Id.
We reject Abram's assertions that the State failed to adduce sufficient evidence to demonstrate that he had an intent to kill Sarah or concerning his state of mind. The Nebraska Supreme Court has specifically held that when the sufficiency of the evidence as to criminal intent is questioned, independent evidence of specific intent is not required. Id. Rather, the intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. Id.
The evidence in this case supports a finding that Jarrell called Abram and that Abram instructed Jarrell to kidnap Sarah and wait for further directions on where to take her. Numerous brief telephone calls occurred between Abram and Jarrell over a period of hours, during which period Sarah was locked in the back seat of Jarrell's vehicle and Jarrell was driving Sarah to various locations. Eventually, Rayshawn, who was with Abram, used Abram's cellular telephone to call Jarrell and direct him to take Sarah to an isolated location. When Jarrell arrived at the location, Abram appeared from some bushes, dressed in a fashion attempting to disguise his identity, with a gun. Abram pulled Sarah from the vehicle, placed the gun in her back, forced her to start walking, and then shot her in the back several times while yelling, "[Y]ou're going to die, bitch." Abram then proceeded to toss the gun in a sewer and burn all of the clothing he had been wearing. The words and acts of Abram and the circumstances surrounding the incident certainly support a factual determination by the jury that Abram had the requisite intent and state of mind to support a conviction for attempted first degree murder.
We similarly reject Abram's arguments that his statements to Sarah that she was "going to die, bitch" and his actions of shooting her repeatedly in the back do not support a finding of premeditation to kill her. Abram argues that this evidence only establishes an intent to cause bodily injury and argues that "[i]f he truly intended to kill her, he could easily have accomplished the task simply by aiming higher." Brief for appellant at 10. However, the evidence adduced at trial demonstrates that Jarrell thought Abram actually had succeeded in killing Sarah when the men left the scene, the medical testimony adduced at trial indicated that her injuries were life threatening, and the mere fact that Abram could have been more successful in killing Sarah by aiming elsewhere before shooting her repeatedly does not change the fact that the evidence was sufficient to allow a rational trier of fact to find the necessary elements of the offense proven beyond a reasonable doubt.
Abram's assertions challenging the sufficiency of the evidence to support the attempted first degree murder conviction are meritless. We affirm this conviction.
Abram also asserts that the State adduced insufficient evidence to support his conviction for criminal conspiracy. In this regard, Abram argues that there was no direct evidence adduced to demonstrate a plan and that if he was actually the one who shot Sarah, the only evidence would indicate that he had made a unilateral decision to do it. We find no merit to these assertions.
Neb. Rev. Stat. § 28-202 (Reissue 2008) sets forth the statutory elements of the crime of conspiracy. Section 28-202 provides that a person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony, he agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense and he or another person with whom he conspired commits an overt act in pursuance of the conspiracy. Nebraska follows the unilateral approach to the agreement element, where only the defendant need agree with another person and the second party can feign agreement. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).
Frequently, a conspiracy involves intricate situations and several complex acts, which makes it difficult to establish a conspiracy or conspiratorial intent by direct proof. State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997). Thus, circumstantial evidence may establish the existence of a conspiracy or the criminal intent necessary for a conspiracy. Id.
We disagree with Abram's assertion that the evidence adduced at trial did not provide a basis for the finder of fact to determine that there was a plan between Abram and others to kill Sarah. Although there was no direct evidence adduced of Abram's agreement with others to kill Sarah, there was circumstantial evidence adduced to support such a finding. We recounted above the evidence supporting a finding that Abram intended to kill Sarah. In addition, the evidence adduced at trial indicated that Rayshawn was with Abram and that Rayshawn was the one who, using Abram's cellular telephone, called Jarrell and instructed him to take Sarah to the isolated location. At that location, Rayshawn had backed his vehicle down to the end of a dead-end street, and he provided transportation for Abram both to and from the location. Although it is circumstantial evidence, we find it sufficient evidence to allow a rational trier of fact to find that there was a conspiracy. We find no merit to Abram's assertion concerning this conviction, and we affirm.
Abram next asserts that the district court imposed excessive sentences. The court sentenced Abram to a term of 40 to 50 years' imprisonment on the attempted first degree murder conviction, 40 to 50 years' imprisonment on the use of a deadly weapon conviction, and 20 to 30 years' imprisonment on the conspiracy conviction. The court ordered the sentences to be served consecutively. We find the sentences imposed to be within the statutory limits, and we find no abuse of discretion.
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 relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009). The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009). When imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education and experience, social and cultural background, past criminal record or record of law-abiding conduct, and motivation for the offense, as well as the nature of the offense and the amount of violence involved in the commission of the crime. Id.
Abram does not dispute that the sentences imposed were all within the appropriate statutory limits. Rather, he argues that the court failed to give sufficient weight to mitigating circumstances, including his record of gainful employment, his lack of alcohol abuse or drug trafficking, the lack of structure in his upbringing, and the fact that his criminal record did not include a history of violent offenses.
The court in this case specifically noted various reasons for the sentences being imposed, including that Abram had dropped out of school in the 10th grade, that he had a prior record that included no felonies but did include more than 20 convictions for driving under suspension and driving when his license had been revoked, and that the crimes in this case were egregious. The court specifically noted, "This could have easily been a first degree murder case except for the persistence and the desire to live by the victim in this case."
We note that although Abram points to his record of gainful employment as a mitigating circumstance, the presentence investigation report indicates that Abram told the probation officer preparing the report that "his last job was working for A1 Cleaning for roughly five years," but that his information through the Nebraska Workforce Development Program indicated that he earned wages through the company beginning in the middle of 2003 through the end of 2003 and then wages were not reported through the company again until the middle of 2006. The last wages reported through the Nebraska Workforce Development Program were in 2007, from Omaha Steaks. Abram reported having worked at Tyson Foods for approximately 7 or 8 months prior to being incarcerated in the present case, working for a family-owned business, and working for Dish Network installing satellite dishes for roughly a year in 2007. Although Abram's self-reporting indicates a record of employment, his reporting and the representations in the presentence investigation report also demonstrate a lack of stability.
Although Abram's criminal history did not include a record of prior felonious behavior, it is a lengthy and consistent criminal history. Dating back to 1997 when Abram was a juvenile, his record indicates at least one contact with law enforcement and the court system every year until the present offense. He has previously been placed on both juvenile and adult probation, fined, sentenced to jail time, and had his driver's license suspended or revoked on numerous occasions. He served 30 days in jail in 2007 for an assault and battery conviction, less than 1 year before the events of the present case.
In light of the seriousness of the offenses in this case, the lack of any meaningful justification for shooting Sarah repeatedly in the back and leaving her to die, and his consistent criminal behavior, we find no abuse of discretion by the trial court in imposing the sentences in this case. We find no merit to this assignment of error, and we affirm the sentences imposed.
We note that Abram's brief on appeal includes assertions that his trial counsel was ineffective for failing to object to various jury instructions. No such issue was assigned as error on appeal. See State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009) (alleged error must be both specifically assigned and specifically argued in brief of party asserting error to be considered by appellate court). Therefore, we cannot and do not address these assertions.
We find no merit to Abram's assertions on appeal. There was sufficient evidence to sustain the jury's findings convicting Abram of attempted first degree murder and criminal conspiracy. The sentences imposed were not an abuse of discretion. We affirm.
AFFIRMED.
