CONNOLLY, J.
A jury found Armon M. Dixon guilty of one count of first degree sexual assault and one count of robbery. The court determined that Dixon was a habitual offender as to both counts and sentenced Dixon to consecutive terms of 35 to 60 years in
In March 2009, the victim, S.I., arrived for work at a convenience store in Lincoln, Nebraska. S.I. worked alone during the morning shift, which began at 5 a.m. As she approached the front door, someone came up behind her, grabbed her left arm, pulled it behind her back, and then pinned her against a "propane cage." The assailant whispered to S.I., "[I have] been watching [you] for a while now, bitch." He asked S.I. if she had any money. When she responded that she did not, he said that he "was going to get something else instead."
The assailant then forced her to the back of the building. He told S.I. to remove her belt, which she did. He then tied S.I.'s hands behind her back with her belt and told her to sit down. The assailant then began to take off one of S.I.'s boots. Realizing what was happening, S.I. began to scream and attempted to kick the assailant. The assailant then grabbed S.I. by the throat and choked her. As he choked her, he asked her if she was going to stop screaming. She nodded yes. He then removed S.I.'s other boot and "yanked" her pants off.
S.I. began to scream again. The assailant then punched S.I. at least three times in the face, knocking her glasses off and bloodying her lip. Then he sexually assaulted her.
The assailant then asked for her driver's license. He retrieved it from her purse and, after confirming with her that it reflected her current address, told S.I. that if she did not do as he told her to, he was going to "either fuck with [her] or [her] family."
The assailant then led her to the front of the building. He used her keys to gain access to the building. Once inside, he had S.I. lead him to the safe and provide him with the code and keys to open it. He then put cash and coins into grocery bags and ordered S.I. to lie on her stomach. After tying S.I.'s feet to her hands behind her back, he left.
S.I. eventually managed to free herself and called the 911 emergency dispatch service. The police arrived shortly thereafter with a canine unit. The dog picked up a scent at the entrance to the convenience store and continued to track it. Following the dog's track, the officers found two condoms, one inside the other, and some coins. DNA testing was unable to eliminate S.I. as a possible source of the DNA on the outside of the condom.
Later, the investigation focused on Dixon. An officer asked Dixon to supply a DNA sample, and Dixon did so by swabbing his mouth. Later testing was unable to eliminate Dixon as a source of the DNA that was inside the condom. The record showed the most conservative odds of a person other than Dixon sharing the genetic profile found inside the condom are 1 in 3.17 quintillion.
At trial, Dixon presented an alibi defense; he claimed that he had been drinking with friends all night and thus could not have committed the crimes. Dixon's evidence showed that he had gone to bars in Omaha, Nebraska, that night with two friends, Roman Alexis Zuniga (Alexis) and Jonathan Zuniga (Jonathan). On the way back, outside of Wahoo, Nebraska, Alexis was arrested for driving under the influence. This occurred at about 2:20 a.m. The arresting officer left Dixon and Jonathan at the scene with the vehicle. After
Dixon testified that they then went to the home of one of Jonathan's friends and stayed there for "[m]ore than an hour and a half" before he was taken home. While riding home, Dixon claims that his alarm on his telephone went off, which he claims he usually set for 5:25 a.m. Dixon's sister, with whom he was staying at the time, testified that she awoke to hear him entering her apartment at about 6 a.m.
The jury found Dixon guilty of both charges. At the habitual criminal enhancement hearing, Dixon objected to the introduction of records of his prior convictions. He claimed that there was not sufficient evidence to prove that he was the same person referred to in the records of the prior convictions. He also argued that aiding and abetting was not a crime for which later sentences could be enhanced under Neb.Rev.Stat. § 29-2221(1)(a) (Reissue 2008). The court overruled these objections and found Dixon to be a habitual criminal. The court sentenced him to consecutive terms of 35 to 60 years' imprisonment.
Dixon assigns, restated and renumbered, that the district court erred as follows:
(1) in failing to sustain his motion for a change of venue;
(2) in failing to sustain his motion to strike jurors for cause;
(3) in failing to sustain his motion for a continuance when he could not produce a witness;
(4) in failing to sustain his motions for mistrial;
(5) in failing to sustain his motion for a directed verdict;
(6) in finding that the State had adequately proved his prior convictions so that he could be sentenced as a habitual criminal;
(7) in concluding that aiding and abetting first degree assault can serve as a predicate offense under § 29-2221(1)(a); and
(8) in imposing excessive sentences.
Dixon contends that the court erred in overruling his motion to change venue. He claims that the pretrial publicity made it impossible for him to receive a fair trial in Lancaster County. We review the denial of a motion to change venue for abuse of discretion.
Under Neb.Rev.Stat. § 29-1301 (Reissue 2008), we have held that a change of venue is mandated when a defendant cannot receive a fair and impartial trial in the county where the offense was committed.
As we know, mere exposure to news accounts of a crime does not presumptively deprive a defendant of due process.
Dixon has presented exhibits containing many news accounts of the crimes and his arrest. These articles discuss all stages of the investigation and the lead-up to Dixon's trial. Some of the articles were written before Dixon emerged as a suspect, and so do not mention him by name, while others were written after Dixon had become a suspect.
The articles that do not specifically mention Dixon discuss efforts to find the suspect. Several describe reward funds that had been set up by area businesses, while another mentions that police had stepped up patrols and were seeking tips. Other articles recount requests by police to not have women open or close businesses alone.
Generally, the articles that mention Dixon recount the allegations of the assault of S.I. as well as other assaults in which Dixon was a suspect. The articles also mention that while being questioned, Dixon lunged at an officer and tried to wrestle the officer's gun from him. One article recounts the prison sentences Dixon faced if convicted of the charges. Some articles discuss some of the evidence that the police had, such as DNA evidence or a witness identification.
Other articles discuss the pretrial proceedings. For example, one article describes how Dixon successfully moved to sever the charges relating to S.I. from charges relating to another victim. Another article discusses an officer's interrogation of Dixon that the district court suppressed because it had concluded that the interrogation had violated Dixon's Miranda rights.
Finally, the exhibits also contain articles that reflect more personally on Dixon. One recounts statements from Dixon's mother. His mother commented that she believed her son was innocent and that he had promised to change after he was released on parole. Another discusses Dixon's prior convictions.
The above-mentioned articles are generally factual and none of them are misleading. Press coverage that is factual cannot serve as the basis for a change of venue.
Dixon argues that the court erred in failing to strike nine jurors for cause. He claims that these jurors were exposed to publicity surrounding the trial. After peremptory challenges, only two of these jurors ultimately sat on the jury that decided the case.
The decision to retain or reject a venireperson as a juror rests in the trial court's discretion, and we will reverse only when it is clearly wrong.
Neb.Rev.Stat. § 29-2006 (Reissue 2008) establishes when jurors in a criminal trial may be challenged for cause. Under this statute, dismissal is mandatory only if the prospective juror has formed an opinion about the defendant's guilt or innocence based on "`conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify.'"
Juror No. 10 mentioned that he had previously heard something about the case on television several months earlier. He recalled that a robbery and an assault had occurred but did not recall anything more specific than that. He mentioned the name "Armon Dixon" was "vaguely familiar." He stated that he could disregard anything he might have heard and decide the case solely on the evidence introduced at trial.
Juror No. 13 had also heard about the case through television reports, which he said included images of Dixon. He also stated that he had heard that Dixon had been accused of "rape and burglary" and that there was "maybe DNA evidence." He stated that he had not yet formed an opinion and that he could disregard what he saw and decide the case solely on the evidence presented at trial.
Both jurors were exposed to only news accounts of the incidents, and neither was exposed before the trial to any testimony
Dixon argues that the court erred in overruling his motion for a continuance. To bolster his alibi defense, Dixon wanted to present the testimony of Jonathan, a friend that he was drinking with the night of the incident. Dixon claims that Jonathan's testimony would support his alibi. Jonathan, however, was the target of an unrelated arrest warrant and was thus making himself difficult to find.
A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
Neb.Rev.Stat. § 25-1148 (Reissue 2008) requires motions for a continuance to be in writing; Dixon never submitted a written motion. Nevertheless, we have previously stated that the failure to put such a motion in writing "`is but a factor to be considered in determining whether a trial court abused its discretion in denying a continuance.'"
We conclude that the court did not abuse its discretion in denying Dixon a continuance. Dixon did not submit a written motion for a continuance even though he knew early on that securing Jonathan's presence would be difficult. Dixon's counsel mentioned the difficulty before voir dire of the jurors. But the motion was never put into writing. This weighs against Dixon.
But more important, Dixon could not say when—if ever—he could serve Jonathan with a subpoena. To grant a continuance in such a circumstance would put the trial in limbo. When deciding whether to grant a continuance in a criminal case, a court must take into consideration "the public interest in prompt disposition of the case."
Dixon argues that the court erred in denying his motions for mistrial. Dixon twice moved for a mistrial—one motion stemmed from an allegation that the State violated a motion in limine, while the other related to an incident when Dixon became sick outside the presence of the jury.
Before trial, Dixon moved in limine to bar any testimony indicating that Dixon could have tested the condoms for DNA but chose not to. The court granted this motion. While questioning the technician who had tested the material, the State asked "was there enough DNA in those exhibits . . . for other testing to be done on it?" Dixon objected as to relevancy and also moved for a mistrial. The court overruled both the objection and the motion. The court, however, instructed the State to rephrase the question. The State then asked the expert if, "in [her] testing of [the] samples[, she] consume[d] all the material." Dixon did not request the court to admonish the jury because he did not want to "highlight[ ] the issue for the jury."
A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
We conclude that the trial court did not abuse its discretion in overruling the motion for mistrial. As mentioned, a mistrial may be granted when there is an event whose damaging effect cannot be removed by an admonition or instruction to the jury. But Dixon did not ask for such an admonition because he did not want to highlight the issue for the jury. It appears he thought the jury likely did not notice the question or would not assign any importance to it. This undercuts his claim that the error was so prejudicial that his trial was unfair. Stating the obvious— if the error was so minor that Dixon would gamble on a jury's not noticing it—it is doubtful that it could have resulted in a substantial miscarriage of justice. The trial court did not abuse its discretion in refusing to grant a mistrial.
Dixon also moved for a mistrial after he became sick while being brought into court. Dixon apparently fell to the ground and began vomiting. This incident, however, occurred outside the jury's presence. Dixon does not claim that the jurors saw the incident as they were in the jury room when it occurred. Grasping at a slender reed, he suggests that the jurors may have heard the commotion from their room.
After the incident, the court told the jurors that an issue had arisen that required
We conclude that the court did not err in refusing to grant a mistrial because of Dixon's medical incident. The record fails to show that the jury ever knew it had happened. A party must premise a motion for mistrial upon actual prejudice, not the mere possibility of prejudice.
Dixon argues that the court erred in failing to grant his motion to dismiss. He argues that the State did not prove the elements of the crime beyond a reasonable doubt.
When a court overrules a defendant's motion to dismiss at the close of the State's case in chief and the defendant proceeds to trial and introduces evidence, the defendant waives the appellate right to challenge the trial court's overruling of the motion to dismiss.
When reviewing a criminal conviction for sufficiency of the evidence, it does not matter whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finders of fact.
The information charged Dixon with first degree sexual assault
Viewing the evidence in the light most favorable to the prosecution, we determine the record reflects sufficient evidence to sustain the conviction beyond a reasonable doubt.
Here, a rational trier of fact could find that the State proved that Dixon committed sexual assault beyond a reasonable doubt.
To prove robbery, the State must show beyond a reasonable doubt that the defendant, with the intent to steal, forcibly and by violence, or by putting in fear, took any money or personal property of any value whatever from another person. "To steal" is commonly understood to mean taking without right or leave with intent to keep wrongfully.
The State has presented evidence that would allow a rational trier of fact to find the material elements of the crime beyond a reasonable doubt.
The State has presented evidence to allow the jury to find beyond a reasonable doubt that Dixon committed robbery.
But Dixon makes three arguments as to why a rational jury could not have found him guilty. First, he argues that the State did not challenge Dixon's alibi defense. Although the State did not explicitly argue that Dixon had not been with his friends at all that night, the State presented DNA evidence that tied Dixon to the assault of S.I. Obviously, if this DNA evidence was believed, this put Dixon at the convenience store; the jurors could not also believe Dixon's alibi.
Second, Dixon argues that he cannot be the man described in S.I.'s testimony. He argues that the man that S.I. described is taller than Dixon. And he points out that S.I. testified that she did not smell alcohol on her assailant; Dixon claimed that he was drinking all night.
Third, Dixon contends that the State's DNA evidence was unreliable. First, he claims that the officer who collected his sample touched the swabs without gloves—although the officer denied this. Dixon also claims the DNA evidence is unreliable because the technician had a difficult time generating a complete profile from the sample.
Regarding these last two arguments, what Dixon asks us to do is to reweigh the evidence presented to the jury. But we do not reweigh evidence, resolve conflicts in the evidence, or assess the credibility of witnesses; that is the province of the jury.
Dixon argues that under Neb.Rev. Stat. § 29-2222 (Reissue 2008), the court erred in concluding that the State had sufficiently proved his prior convictions. Section 29-2222 provides:
In a proceeding to enhance punishment because of prior convictions, the State has the burden of proving such prior convictions by a preponderance of the evidence.
A prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities.
The State introduced four exhibits showing certified felony convictions for an "Armon Dixon." Dixon argues that the State has failed to prove that he is the "Armon Dixon" convicted in these cases. Dixon does not argue that the defendant in the above exhibits was not represented by counsel during the earlier convictions. Nor does he argue that the defendant was not committed to prison for at least 1 year for these earlier crimes. His sole argument is that the State did not sufficiently prove that he was the person convicted in the four exhibits. We note that Dixon is referred to in court records before this court as "Armon M. Dixon." And, as mentioned, the record contains newspaper articles referring to the criminal investigation as well as the lead-up to Dixon's trial. A newspaper article dated May 16, 2009, states that Dixon is 29 years old. A July 2, 2009, article refers to Dixon as being 30 years old. His birth date then would fall either in late May or sometime in June. Further, it shows that Dixon was born in 1979.
The first conviction is a conviction from Illinois for delivery of a controlled substance. The "Armon Dixon" convicted in that case had a birth date of June 2, 1979. The second conviction is a conviction from Minnesota. It is another conviction for selling drugs. The "Armon Monet
Dixon's argument mirrors the one made by the appellant in State v. Thomas.
Likewise, Dixon never denied that he was the "Armon Dixon" in the earlier cases. Nor did he present any evidence showing that he was not that person. He simply argued that the State had not met its burden. We disagree.
The names in all four of the prior convictions are "Armon Dixon" or "Armon M. Dixon" and thus match Dixon's name. Because Dixon has not denied that he is the person referred to in these earlier convictions and has not presented any evidence contradicting the State's position, under Thomas, this is sufficient. Moreover, the birth dates reflected on three of the prior convictions are consistent with Dixon's age. The State has proved the prior convictions by a preponderance of the evidence.
Dixon next argues that a conviction for aiding and abetting first degree assault cannot serve as a predicate offense under § 29-2221(1)(a). This assignment of error presents a question of statutory interpretation. Statutory interpretation is a question of law that we resolve independently of the trial court.
Section 29-2221(1)(a) provides that if the defendant is convicted of one of several enumerated crimes and one of the defendant's two previous felony convictions is for one of those crimes, the minimum sentence is 25 years' imprisonment, as opposed to the 10-year minimum under § 29-2221(1). The offenses listed in § 29-2221(1)(a) are first degree murder,
Our objective in interpreting a statute is to determine and give effect to the legislative intent of the enactment.
Dixon points out that the record contains a previous conviction for aiding and abetting first degree assault. While first degree assault is a crime listed in § 29-2221(1)(a), aiding and abetting
At common law, there were four classes of parties to a felony: (1) principal in the first degree, (2) principal in the second degree, (3) accessory before the fact, and (4) accessory after the fact.
These common-law categories sometimes presented procedural difficulties.
Because of these procedural difficulties, today, all states have abolished the distinction between principals and accessories before the fact.
Nebraska has followed this modern statutory trend of abolishing the distinction between principals in the first and second degree and accessories before the fact.
Dixon's final argument is that the court erred in imposing excessive sentences. After finding Dixon to be a habitual criminal, the court sentenced Dixon to consecutive terms of 35 to 60 years' imprisonment.
As we explained earlier, the sentence for Dixon's sexual assault conviction is covered by § 29-2221(1)(a). The statutory limits under this section are 25 to 60 years' imprisonment. Dixon's sentence falls within these limits. Dixon's robbery conviction is covered by § 29-2221(1), which provides for a sentence of 10 to 60 years' imprisonment. Again, Dixon's sentence falls within the statutory limits.
We will not disturb a sentence imposed within the statutory limits in the absence of an abuse of discretion.
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, (6) motivation for the offense, (7) the nature of the offense, and (8) the violence involved in the commission of the crime.
AFFIRMED.
WRIGHT, J., not participating.
