State v. Ramirez

STATE v. RAMIREZ 	203
Cite as 285 Neb. 203
and that the county court and the district court erred in not sus-
taining Bromm’s motion to suppress. Accordingly, we reverse
the decision of the Court of Appeals.
Because the Court of Appeals determined that the evidence
should be suppressed, it did not consider Bromm’s assign-
ments of error and arguments concerning the horizontal gaze
nystagmus test, administration of the preliminary breath test,
and alleged errors in the arresting officer’s report. We therefore
remand the cause to the Court of Appeals to consider Bromm’s
remaining assignments of error.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
state of nebRaska, appellee, v.
billy R amiRez, appellant.
825 N.W.2d 801
Filed February 8, 2013. 	No. S-12-251.
1. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse of judi-
cial discretion.
2. ____: ____. An abuse of discretion takes place when the sentencing court’s rea-
sons or rulings are clearly untenable and unfairly deprive a litigant of a substan-
tial right and a just result.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
4. Criminal Law: Juries. The determination of whether an injury is a “serious
bodily injury” is a question of fact for the jury.
5. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 (Reissue
2008) vests trial courts with the authority to order restitution for actual damages
sustained by the victim of a crime for which a defendant is convicted.
6. Sentences: Restitution. After the sentencing court determines that a conviction
warrants restitution, it then becomes the sentencing court’s factfinding respon-
sibility to determine the victim’s actual damages and the defendant’s ability
to pay.
7. ____: ____. Under Neb. Rev. Stat. § 29-2281 (Reissue 2008), the sentencing
court may hold a hearing at the time of sentencing to determine the amount
of restitution.
8. Effectiveness of Counsel: Records: Evidence: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because it is made
on direct appeal. The determining factor is whether the record is sufficient to
adequately review the question.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

204 	285 NEBRASKA REPORTS
9. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
Appeal from the District Court for Hall County: teResa k.
lutheR, Judge. Affirmed.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Jon Bruning, Attorney General, Carrie A. Thober, and James
D. Smith for appellee.
heavican, c.J., WRight, connolly, stephan, mccoRmack,
milleR-leRman, and cassel, JJ.
mccoRmack, J.
NATURE OF CASE
Billy Ramirez was convicted by a jury of third degree
assault, a Class I misdemeanor under Neb. Rev. Stat. § 28-310
(Reissue 2008). The district court sentenced him to 24 months
of probation and ordered him to pay restitution to the vic-
tim pursuant to Neb. Rev. Stat. § 29-2280 (Reissue 2008).
Ramirez appeals the restitution order and alleges ineffective
trial counsel.
BACKGROUND
Brant Van Boening and his wife, Joy Van Boening, were
on a bicycle ride in Hall County, Nebraska. The couple had
stopped their bicycles on the shoulder of the road to allow a
few vehicles to pass. One of the vehicles waiting to pass was a
truck driven by Ramirez, who was waiting to turn right.
While Joy was waiting for the vehicles to pass, Ramirez told
her to “get the fuck out of the way.” Joy abided and quickly
crossed the road. Brant, however, remained on the shoulder
and began cleaning his glasses. At the time, Ramirez believed
Brant was challenging him to get out of his truck. Ramirez
“laid on the horn” and told Brant to get out of his way. Brant
then walked behind Ramirez’ truck and began reading Ramirez’
license plate number out loud. Ramirez exited the vehicle, and
a verbal confrontation ensued.

STATE v. RAMIREZ 	205
Cite as 285 Neb. 203
After 15 to 20 seconds of arguing, Ramirez retreated to
his truck and began to leave. As Ramirez pulled away, Brant
stated, “[s]ee you later, ese.” Ramirez, a man of Mexican
heritage, took offense, stopped his truck, and again confronted
Brant. According to Ramirez, he then “backslapped” Brant
with his right hand. According to Joy and Brant, Ramirez
punched Brant. Brant “heard a pop” and “saw white” when he
was struck by Ramirez.
When 	a 	sheriff’s 	deputy 	arrived 	on 	the 	scene, 	Brant
reported that his jaw was causing him pain. The deputy noted
that Brant’s face was not swollen or bruised. The deputy
offered to have an ambulance dispatched, but Brant declined
in favor of seeking his own medical treatment. Ramirez was
given a citation for third degree assault and was allowed
to leave.
After returning home, Brant’s jaw became swollen and he
was unable to open or close his mouth. Brant called his den-
tist, Dr. David Stoddard, and went to his office 2 days after
the incident. Stoddard took an x ray, which revealed that his
jaw was fractured in two places. Stoddard referred Brant to Dr.
Martin Tilley, an oral and maxillofacial surgeon. Tilley wired
Brant’s jaw shut for 6 to 7 weeks.
voiR diRe and tRial
Ramirez was charged with first degree assault under Neb.
Rev. Stat. § 28-308 (Cum. Supp. 2012) and the lesser-included
offense of third degree assault under § 29-2280. Before trial,
LaDonna Ortega was removed from the jury pool during voir
dire. According to Ramirez, Ortega was the only member of
the venire with a Hispanic surname. When questioned, Ortega
told the court that she had worked with Brant’s parents. After
voir dire was completed, the court, off the record, took the
peremptory strikes from counsel. When court resumed, the
court dismissed 14 members of the venire, including Ortega.
Explanations were not given by the court or by counsel for any
of the dismissals.
At the trial, Ramirez argued that he did not break Brant’s
jaw. He alleged that Brant’s jaw must have been broken
after the incident. At trial, the State offered the testimony of

206 	285 NEBRASKA REPORTS
Stoddard and Tilley. Both agreed that, based on their training
and expertise, Brant’s injury was consistent with being hit in
the face or mouth. Stoddard noted that it would not take much
force to fracture Brant’s jaw because Brant is a “slightly-built
guy.” Tilley testified that it was not uncommon for there to
be no swelling or bruising with a fractured jaw. Additionally,
both Brant and Joy testified that Brant’s jaw did not suffer any
additional injuries between the time of the assault and the x ray
taken at Stoddard’s office.
At the close of evidence, both the charge of first degree
assault and the charge of the lesser-included offense of third
degree assault were submitted to the jury. After deliberations,
the jury found Ramirez guilty of third degree assault. A restitu-
tion hearing was held, and the district court sentenced Ramirez
to 24 months of probation and ordered him to pay restitution
for Brant’s medical bills of $2,256.62 and for his lost income
of $500.
ASSIGNMENTS OF ERROR
Ramirez has assigned that the district court erred in order-
ing Ramirez to pay restitution for medical expenses after the
jury convicted him only of third degree assault. Ramirez also
alleges that his trial counsel was ineffective in failing to chal-
lenge the racial composition of the jury and in failing to make
a Batson1 challenge to the striking of the only member of the
prospective jury panel with a Hispanic surname.
STANDARD OF REVIEW
[1,2] Sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was
an abuse of judicial discretion.2 An abuse of discretion takes
place when the sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive a litigant of a substantial right
and a just result.3
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2 State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
3 Id.

STATE v. RAMIREZ 	207
Cite as 285 Neb. 203
[3] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.4
ANALYSIS
R estitution
The crux of Ramirez’ restitution argument is that by not con-
victing him of first degree assault, the jury did not believe that
Ramirez had broken Brant’s jaw, which Ramirez argues is a per
se “serious bodily injury” under § 28-308. Therefore, accord-
ing to Ramirez, restitution for the broken jaw was improper
under § 29-2280, because the damages were not “a direct result
of the offense for which the defendant has been convicted.”
We disagree.
[4] First, Ramirez’ underlying argument that a broken jaw
is a per se “serious bodily injury” is without merit. The deter-
mination of whether an injury is a “serious bodily injury” is
a question of fact for the jury.5 Nebraska law does not clas-
sify injuries, such as a broken jaw, as a per se “serious bodily
injury.”6 Rather, the jury is free to make such a determination
on its own for purposes of a conviction.7 Thus, the jury’s deci-
sion to not convict Ramirez of causing “serious bodily injury”
does not necessarily mean the jury found that Ramirez did not
break Brant’s jaw.
[5] Second, it is the sentencing court, not the jury, that deter-
mines what damages a victim suffered for purposes of restitu-
tion. Section 29-2280 vests trial courts with the authority to
order restitution for actual damages sustained by the victim of
a crime for which a defendant is convicted.8 In its relevant part,
the restitution statute states:
A sentencing court may order the defendant to make
restitution for the actual . . . loss sustained by the victim
as a direct result of the offense for which the defendant
4 Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).
5 See State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
6 See id.
7 Id.
8 State v. Holecek, supra note 2.

208 	285 NEBRASKA REPORTS
has been convicted. . . . Whenever the court believes that
restitution may be a proper sentence . . . the court shall
order that the presentence investigation report include
documentation regarding the nature and amount of the
actual damages sustained by the victim.9
(Emphasis supplied.)
[6,7] After the sentencing court determines that a con-
viction warrants restitution, it then becomes the sentencing
court’s factfinding responsibility to determine the victim’s
actual damages and the defendant’s ability to pay.10 Under
Neb. Rev. Stat. § 29-2281 (Reissue 2008), the sentencing
court may hold a hearing at the time of sentencing to deter-
mine the amount of restitution.11 The sentencing court’s deter-
mination of “restitution shall be based on the actual damages
sustained by the victim and shall be supported by evidence
which shall become a part of the court record.”12 To be relied
upon by the sentencing court, the evidence must be sworn
and corroborated.13
Here, restitution was a proper penalty for Ramirez’ third
degree assault conviction. Jury instruction No. 2 sets out the
following: “The elements of Assault in the Third Degree
are: (1) That . . . Ramirez caused bodily injury to Brant . . . .
(2) That [Ramirez] did so intentionally or knowingly. (3) That
[Ramirez] did so on or about June 27, 2010, in Hall County,
Nebraska.” Therefore, by convicting Ramirez of third degree
assault, the jury necessarily found that Ramirez intentionally,
knowingly, or recklessly caused bodily injury to Brant.
Nebraska statute allows a victim to recover medical costs
and lost income associated with bodily injuries suffered dur-
ing the crime for which the defendant was convicted.14 Under
§ 29-2282, restitution is warranted “[i]f the offense results
in bodily injury.” Section 29-2282 states that “the court may
9 § 29-2280.
10 See State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
11 See id.
12 § 29-2281.
13 See State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991).
14 See Neb. Rev. Stat. § 29-2282 (Reissue 2008).

STATE v. RAMIREZ 	209
Cite as 285 Neb. 203
require payment of necessary medical care, including, but not
limited to, physical or psychological treatment and therapy, and
payment for income lost due to such bodily injury.” (Emphasis
supplied.) Therefore, Ramirez’ conviction for third degree
assault warranted the sentencing court’s decision to hold a res-
titution hearing to determine the loss suffered by Brant due to
his bodily injuries.
At that restitution hearing, the sentencing court properly
received evidence under § 29-2280 to determine the amount
of damages. Brant, under sworn testimony, and without objec-
tion, testified that he was struck in the face by Ramirez, that
such strike resulted in a broken jaw, and that he incurred medi-
cal expenses and lost income as a direct result of the injury.
To corroborate his damages, Brant laid the foundation for his
medical bills incurred as a result of the injury. These exhibits
were received and admitted into evidence by the sentenc-
ing court.
When afforded the opportunity to present testimony and evi-
dence at the restitution hearing, Ramirez refused and stated that
the entire process was a “charade.” However, when given the
opportunity to speak directly to the court after the restitution
hearing but before the sentence was imposed, Ramirez made
the following unsworn statement:
Now, with regards [sic] to the injuries, the restitution,
it was never proven that I actually caused that injury. Dr.
Stoddard, the dentist that he went to see, noted the day
after the incident that he saw no bleeding, no swelling,
no injuries of any sort. When he went to the surgeon four
days later, it was also noted that he didn’t see any inju-
ries, any bleeding, any swelling. Something had to have
happened from the time that I actually slapped him to the
time he went to see the surgeon.
Ramirez’ statement was an unsworn and uncorroborated state-
ment made after the court received the evidence concerning
restitution. Under our precedent, the sentencing court could not
properly rely on Ramirez’ statement for purposes of determin-
ing restitution.15
15 See State v. McLain, supra note 13.

210 	285 NEBRASKA REPORTS
Even considering Ramirez’ statement, we find the evidence
presented at the restitution hearing clearly established that
Ramirez broke Brant’s jaw and that such injury resulted in
documented medical care expenses and lost income. Brant,
without objection, testified that Ramirez broke his jaw during
the assault for which Ramirez was convicted. In contrast, when
given the opportunity to raise a defense, Ramirez failed to pro-
vide any competent evidence to support his theory that he did
not break Brant’s jaw. Therefore, Ramirez’ argument that his
conviction did not warrant restitution is without merit.
Therefore, we hold that the district court did not abuse its
discretion in requiring Ramirez to pay restitution for Brant’s
medical expenses and lost income for his conviction for third
degree assault.
claims of ineffective assistance
of counsel
[8,9] Ramirez also raises claims of ineffective assistance of
trial counsel. A claim of ineffective assistance of counsel need
not be dismissed merely because it is made on direct appeal.16
Rather, the determining factor is whether the record is suffi-
cient to adequately review the question.17 An ineffective assist-
ance of counsel claim will not be addressed on direct appeal if
it requires an evidentiary hearing.18
Ramirez has assigned that his trial counsel was ineffective
during voir dire in two ways. First, trial counsel failed to chal-
lenge the racial composition of the jury. Ramirez alleges that
the jury was composed of only Caucasians and that the entire
jury pool had proportionally fewer Hispanics than resided
in Hall County, Nebraska, at the time of the trial. Second,
Ramirez argues that trial counsel was ineffective in failing to
raise a Batson challenge to the striking of Ortega, who Ramirez
alleges was the only member of the prospective jury with a
Hispanic surname.
16 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
17 Id.
18 Id.

JEREMIAH J. v. DAKOTA D. 	211
Cite as 285 Neb. 211
At this time, the record is insufficient to address Ramirez’
claims. There is no evidence in the record of the racial com-
position of the jury pool, the procedure utilized for the jury
pool, or the racial composition of the Hall County commu-
nity. Additionally, for purposes of the Batson challenge, the
record is unclear on whether Ortega was even peremptorily
struck by the State. Furthermore, the record does not include
defense counsel’s objections, if any, to the removal of Ortega
or the State’s reasons for exercising the alleged peremp-
tory challenge.
An evidentiary hearing is required to properly resolve these
issues, and therefore, these issues are not appropriate for
review on direct appeal. Ramirez is free to raise these issues of
ineffective assistance of trial counsel in a motion for postcon-
viction relief.
CONCLUSION
The jury’s decision to convict Ramirez of assault in the third
degree does not preclude the sentencing court from ordering
restitution for Brant’s broken jaw. A broken jaw is not a per
se “serious bodily injury,” and the jury’s rejection of assault in
the first degree does not implicate the sentencing court’s find-
ings of fact on the damages actually suffered by Brant. We also
find that the record is insufficient to address both of Ramirez’
claims of ineffective assistance of counsel.
affiRmed.
JeRemiah J., appellant, v.
dakota d., appellee.
826 N.W.2d 242
Filed February 8, 2013. 	No. S-12-517.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was