THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IRWIN, Judge.
I. INTRODUCTION
Following a bench trial, Corey D. Dugger appeals his conviction for strangulation which was charged as a Class III felony, because he had a prior conviction for strangulation. Dugger challenges the admission of evidence and the sufficiency of the evidence to convict him. We find no merit to these assertions, and we affirm.
II. BACKGROUND
On June 17, 2011, the State filed an information charging Dugger with "Strangulation Prior Offense." The charge stemmed from an incident on May 26, 2011, in which police and paramedics were summoned to the four-plex apartment building in which Dugger resided with his girlfriend, Justine Nigro, and her infant son. At trial, the couple's downstairs neighbor, Teresa Spurgeon, testified that she was awakened around 1 a.m. by the sounds of arguing, running water, and some thudding noises. Spurgeon's 10-year-old son was also awakened by the disturbance. Within a few minutes, Spurgeon heard pounding on her back door and Nigro's voice saying, "Terry, please help me." Spurgeon stated that she opened the door to discover Nigro completely naked, shaking, and crying hysterically. Spurgeon walked away momentarily to get a robe for Nigro and then discovered that Nigro was gone when she returned with the robe. After Spurgeon borrowed another neighbor's cellular telephone to call police, Nigro had returned with her infant, stating, "I had to go get my baby." Spurgeon said Nigro was still naked and hysterical at this time.
Over Dugger's hearsay objection, Spurgeon testified that Nigro showed Spurgeon red marks around the base of her neck and stated, "He tried to kill me.... I know I passed out, but I don't know for how long." Spurgeon stated that Nigro said it was Dugger who tried to kill her. Spurgeon testified Nigro explained that she had been asleep when Dugger came home and began taking a bath and that she feared Dugger would drown in the tub. When Nigro began trying to pull him out of the tub, Dugger became angry with her, and she awoke in the living room after having passed out. Spurgeon testified that Nigro was upset and crying while describing the incident to her.
Two Omaha police officers, Timothy Bauman and Chris Melton, arrived at Spurgeon's apartment after being summoned to respond to a domestic dispute. Both described Nigro as crying and very upset. The officers observed and photographed red marks on Nigro's neck, which photographs were entered into evidence. Bauman stated that he then searched Nigro's apartment, looking for Dugger. Bauman stated that Dugger had already left the apartment but was later apprehended and returned to the scene.
The district court sustained a hearsay objection when Melton was asked what Nigro had told him about the incident. Melton later testified without objection that he went to Nigro's apartment to look for Dugger, the individual that Nigro said she had the altercation with. Melton stated that Dugger was quickly apprehended by police, after which Melton asked him for his "side of the story." Melton testified that Dugger explained that he had attempted to grab Nigro in order to calm her down in the course of an argument and that his arm came up around her neck.
Capt. John Doyle, a firefighter paramedic, testified that he was dispatched to Nigro's apartment building around 2 a.m. to respond to an assault call. He arrived to find Nigro sitting in the living room, and in accordance with standard procedure, Doyle obtained a history of the incident from Nigro. Doyle testified that Nigro was upset and crying. Over Dugger's hearsay objection, Doyle testified that Nigro told him that she had been choked around the neck and struck in the head, although she did not tell him who had choked and struck her. Doyle noted bruising or marks around her neck and petechiae on her cheeks, both of which are consistent with injuries from strangulation. Doyle explained that petechiae are commonly caused by "strangulation or pressure on the neck that causes the blood in the face to back up under undue pressure, they rupture." Doyle stated that he told the rescue squad that Nigro needed to go to the hospital and transferred her care to them.
Omaha firefighter Jason Sterba testified that he was assigned to the medic unit which responded to the assault call involving Nigro and that he obtained information from Doyle before assuming responsibility for the case. Sterba said that after he was briefed by Doyle, he tried to obtain additional information from Nigro, who was very anxious and very agitated. He explained that it was standard protocol when initially making contact with a patient to obtain a history so that a determination can be made for the level and type of treatment. At this point, Dugger lodged a hearsay objection, which objection was overruled on the basis that the statements to which Sterba was testifying were admissible as being made to a medical provider for the purposes of medical diagnosis. Sterba then testified that Nigro told him that she and her boyfriend had a few drinks, that they argued, and that her boyfriend grabbed her by the neck and choked her, causing her difficulty in breathing. Because Nigro was able to speak, Sterba felt she did not have an obstructed airway but that she needed to be transported to a hospital.
The trial court found that the State had offered sufficient circumstantial evidence to prove that Dugger intentionally strangled Nigro. The court further found that Dugger had a prior conviction for strangulation. As a second offender, Dugger was sentenced to 12 to 16 years' imprisonment with credit given for 238 days served. This appeal followed.
III. ASSIGNMENTS OF ERROR
Dugger has assigned three errors on appeal, which we consolidate for discussion into two. First, Dugger asserts that the trial court erred in admitting hearsay evidence. Second, Dugger asserts that the evidence was insufficient to convict him of strangulation.
IV. ANALYSIS
Dugger argues that the trial court abused its discretion when it overruled his hearsay objections to certain testimony by Nigro's neighbor, Spurgeon, and to certain testimony by Omaha firefighter Sterba. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination to admit evidence over a hearsay objection. See id.
1. EXCITED UTTERANCE EXCEPTION
Over Dugger's hearsay objection, Spurgeon was permitted to testify that Nigro said that Dugger had tried to kill Nigro after becoming angry with her in the course of a domestic dispute. The trial court admitted the testimony on the basis that it fell within the excited utterance exception to the hearsay rule, noting that Spurgeon testified that Nigro was pounding on the door in the middle of the night asking for help, and that Nigro was naked, hysterical, and upset even after disappearing for a time to get her baby.
Neb. Rev. Stat. § 27-803(1) (Reissue 2008) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011). The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. Id.
Dugger points to testimony showing that Nigro returned to her own apartment after initially pounding on Spurgeon's door and that Spurgeon had time to borrow a cellular telephone from a neighbor and call police before Nigro returned. He asserts that this testimony indicates that Nigro had time to reflect upon the event before she made her statements to Spurgeon, arguing that Nigro did not remain under the stress of the event by this time. We disagree.
For hearsay to be admissible under the excited utterance exception, "[s]tatements need not be made contemporaneously with the exciting cause but `may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.'" State v. Jacob, 242 Neb. 176, 188, 494 N.W.2d 109, 118 (1993) (quoting 6 John H. Wigmore, Evidence in Trials at Common Law § 1750 (James H. Chadbourn rev. 1976)). "[T]he key requirement is spontaneity, a showing that the statement was made without time for conscious reflection." State v. Boppre, 243 Neb. 908, 927, 503 N.W.2d 526, 538 (1993).
Spurgeon testified that Nigro was naked, crying, and hysterical when she pounded on Spurgeon's door in the middle of the night. Nigro left for a brief time to get her infant and returned, still naked, crying, and hysterical. Referring to Dugger, Nigro stated, "He tried to kill me," when asked about the red marks on her neck. Under these circumstances, Nigro's statements to Spurgeon were admissible under the excited utterance exception to the hearsay rule. Dugger's assignment of error is without merit.
2. MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION
Dugger complains that the district court erred in admitting hearsay testimony of Omaha firefighter Sterba under the guise of the medical purposes exception to the hearsay rule. Dugger notes that Sterba was allowed to testify that Nigro identified Dugger as her assailant, a point that another firefighter, Doyle, did not make in the course of his testimony.
Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact. State v. Lovette, 15 Neb.App. 590, 733 N.W.2d 567 (2007). Even if we assume that the trial court should have excluded Sterba's testimony as inadmissible hearsay, such error was harmless because the State presented other evidence to show that Nigro identified Dugger as her attacker. The trial court properly admitted Spurgeon's testimony that Nigro told her that Dugger had tried to kill her. Police officer Melton testified without objection that Nigro said she had an altercation with Dugger, that Melton subsequently searched Nigro's apartment for Dugger, and that after Dugger was apprehended, he told Melton that he had only inadvertently grabbed Nigro's neck. Thus, even assuming Dugger is correct in arguing that Sterba's testimony was improperly admitted, a finding we decline to make, any possible error in such admission would be harmless because his testimony is cumulative to other evidence properly received. This assignment of error is without merit.
3. SUFFICIENCY OF EVIDENCE
Dugger asserts that the evidence was insufficient to convict him of strangulation, arguing that there was no evidence to support the allegation that he knowingly or intentionally impeded Nigro's breathing by applying pressure to her throat. Neb. Rev. Stat. § 28-310.01(1) (Reissue 2008) provides that "[a] person commits the offense of strangulation if the person knowingly or intentionally impedes the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck of the other person."
Dugger points to the testimony of police officer Melton that Dugger explained that he had grabbed Nigro around the chest in an attempt to restrain her from hitting him and that his arm came up around her neck when she struggled to get away. There was also evidence indicating that Dugger had been bitten in both arms. Dugger also notes that there was no evidence that Nigro indicated that she was intentionally choked.
An appellate court will affirm a conviction absent prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009).
In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact. State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
Spurgeon testified that Nigro, referring to Dugger, stated, "He tried to kill me," when asked about the marks on her neck. Nigro told a number of people that the marks on her neck were received in the course of a domestic altercation between Nigro and Dugger. Firefighter Doyle testified that Nigro had bruising and marks around her neck, stating that she had been choked, and that she exhibited petechiae, commonly caused by pressure on the neck causing the blood in the face to back up under pressure.
Viewing this evidence most favorably to the State, we find that the evidence is clearly sufficient to support Dugger's conviction for strangulation. Dugger has not challenged the enhancement of the charge to a Class III felony because of a previous conviction of strangulation. We find no merit to Dugger's challenge to the sufficiency of the evidence to convict him of strangulation.
V. CONCLUSION
We find no merit to the assertions raised by Dugger on appeal. The district court did not commit reversible error in admitting hearsay evidence, and there was sufficient evidence to convict Dugger of strangulation. For these reasons, we affirm the judgment of the trial court.
AFFIRMED.
