State v. Thompson

erroneously applied, there is no final order from which an
appeal may be taken in this case. Therefore, we vacate the
court’s order certifying a final judgment and, lacking jurisdic-
tion, dismiss this appeal.
O rder vacated, and appeal dismissed.
mccOrmack, J., participating on briefs.
state Of nebraska , appellee , v.
damian l. thOmpsOn, appellant.
770 N.W.2d 598
Filed August 7, 2009. 	No. S-08-1134.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Appeal and Error. In an appeal of a criminal case from the
county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error
or abuse of discretion.
3. Trial: Evidence. An objection based upon insufficient foundation is a gen-
eral objection.
4. Trial: Evidence: Photographs. As a general rule, photographic evidence is
admissible when it is shown that it is a correct reproduction of what it purports
to depict.
5. Trial: Evidence: Appeal and Error. A trial court’s determination of the admis-
sibility of physical evidence will not ordinarily be overturned except for an abuse
of discretion.
6. Appeal and Error. 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.
7. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
8. Judgments: Trial: Evidence: Proof: Appeal and Error. In a bench trial of a
law action, including a criminal case tried without a jury, erroneous admission
of evidence is not reversible error if other relevant evidence, admitted without
objection or properly admitted over objection, sustains the trial court’s factual
findings necessary for the judgment or decision reviewed; therefore, an appel-
lant must show that the trial court actually made a factual determination, or
otherwise resolved a factual issue or question, through the use of erroneously
admitted evidence in a case tried without a jury. The appellant must show that
320 	278N eBrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

the trial court made a finding of guilt based exclusively on the erroneously admit-
ted evidence.
9. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
10. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
11. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
12. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
13. Trial: Convictions. A conviction in a bench trial of a criminal case is sustained if
the properly admitted evidence, viewed and construed most favorably to the State,
is sufficient to support that conviction.
14. Criminal Law: Convictions: Evidence: Appeal and Error. 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.
Appeal from the District Court for Lancaster County, rObert
r. O tte, Judge, on appeal thereto from the County Court for
Lancaster County, Gale pOkOrny, Judge. Judgment of District
Court affirmed.
Dennisr .k eefe, Lancaster Countyp ublic Defender, and
John C. Jorgensen for appellant.
Gary Lacey, Lancaster County Attorney, Daniel D.p ackard,
andr 	ichard 	Grabow, 	Senior 	Certified 	Law 	Student, 	for
appellee.
heavican, 	c.J., 	WriGht, 	cOnnOlly, 	G errard, 	stephan,
mccOrmack, and miller-lerman, JJ.
WriGht, J.
NATUreo F CASe
Damian L. Thompson was convicted in Lancaster County
Court of misdemeanor assault and sentenced to 100 days in
jail. He appealed to the Lancaster County District Court, which
affirmed the conviction and sentence. Thompson appeals.
STATe v.TH ompSoN 	321
Cite as 278 Neb. 320

SCopeo Fre VIeW
[1,2] Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error
appearing on the record. State v. Royer, 276 Neb. 173, 753
N.W.2d 333 (2008). In an appeal of a criminal case from the
county court, the district court acts as an intermediate court of
appeal, and as such, its review is limited to an examination of
the county court record for error or abuse of discretion. Id.
FACTS
Around 5 p.m. on August 30, 2006, Tanya Hansen arrived
at her home in southwest Lincoln. She heard a woman scream-
ing and asking someone to call the police. Hansen went to her
backyard, which abutted an apartment building, and saw a man
chasing a woman, who was yelling for help. She identified
Thompson as the man she saw. Hansen saw Thompson and
the woman enter the apartment building and then come back
outside. Thompson got into a vehicle and left the area, and the
woman yelled that Thompson had taken her car. Hansen called
the 911 emergency dispatch service.
The woman asking for help was identified as Jessica Goff.
Thompson and Goff were temporarily staying in an apartment
withk allir uleau.r uleau testified that on August 30, 2006, she
saw Thompson and Goff outside the apartment and heard them
arguing. Goff, who appeared to be upset, was trying to leave,
and Thompson was trying to stop her from leaving.r uleau
saw Thompson push Goff, who fell to the ground. Thompson
walked away, andr uleau went to help Goff. Goff had small
scratches on her hands.r uleau went into the apartment to get
a telephone for Goff to use to call the police.
officer Thomas Stumbo of the Lincolnp olice Department
was dispatched to the apartment for a domestic disturbance.
When he arrived, Goff andr uleau were standing outside the
building. Goff appeared to be upset and was crying. Stumbo
took photographs of Goff’s injuries, which included a small
laceration on the palm of each hand and a minor laceration on
her left elbow.
A complaint was filed against Thompson, charging him with
assault under Lincolnm un. Code § 9.12.010 (1997). At a trial
322 	278N eBrASkA reporTS

to the court, an audiotape of a call to police about the incident
was received into evidence over Thompson’s objection. The
call was from a woman who identified herself as Goff. The
911 operator testified that the caller seemed upset and reported
that she had been assaulted by Thompson at an apartment in
southwest Lincoln. Thompson was found guilty, and he was
sentenced to 100 days in jail, consecutive to any other sentence
he had pending.
Thompson appealed to the Lancaster County District Court,
assigning the following errors: The county court erred in (1)
receiving photographs of Goff’s injuries into evidence without
sufficient foundation; (2) overruling Thompson’s motion to
dismiss for lack of a prima facie case; (3) finding Thompson
guilty without sufficient evidence to sustain the conviction; (4)
imposing an excessive sentence; (5) receiving into evidence
over Thompson’s hearsay objection a tape of the call to police;
and (6) overruling Thompson’s motions pursuant to Neb.e vid.
r. 404(2), Neb.r ev. Stat. § 27-404(2) (reissue 2008), regard-
ing evidence of other crimes, wrongs, or acts. Thompson
claimed the cumulative effect of all the errors deprived him of
his constitutional right to a public trial by a fair and impartial
fact finder.
The district court affirmed the conviction and sentence.
It found no error in the admission of photographs taken by
Stumbo. The court determined it was clear from Stumbo’s prior
testimony that he identified Goff as the victim when he first
arrived on the scene.
Thompson’s motion to dismiss at the end of the trial was
based on a claim that the State did not elicit testimony from
Goff and, therefore, there was insufficient evidence to sup-
port a prima facie case. The district court found that the facts
established by other witnesses met the State’s burden of proof
to establish a prima facie case against Thompson.
As to whether the sentence was excessive, the district court
noted that violation of § 9.l2.010 is a misdemeanor, for which
the penalty is a maximum of 6 months in jail, a fine of $500,
or both, and Thompson was sentenced to 100 days in jail. The
district court noted that the presentence investigation (pSI)
showed that Thompson had twice been convicted of assault.
STATe v.TH ompSoN 	323
Cite as 278 Neb. 320

In addition, Thompson previously failed to appear for sentenc-
ing. The district court found no abuse of discretion by the
county court.
The district court noted that Thompson had entered a timely
and continuing objection to the receipt into evidence of the
tape recording of the call to police purportedly from Goff.
Thompson argued that the tape should not have been admitted
because it was hearsay. The district court agreed that the foun-
dational threshold necessary to admit the tape into evidence
was lacking and that the county court should not have admitted
the tape. However, the district court found that the admission
of the tape was not so prejudicial as to require reversal of the
county court’s decision. The record was replete with facts the
county court could rely on to establish the necessary evidence
to find Thompson guilty.
The district court found no error concerning the evidence
of other crimes, wrongs, or acts. Thompson did not argue the
error in his brief, and the county court’s ruling did not violate
Thompson’s rights.
The district court then addressed Thompson’s claim that
the cumulative effect of the errors violated his right to a fair
trial. The court noted that even if the testimony of the 911
operator and the tape of the call had been excluded, other
witnesses established the charge against Thompson beyond
a reasonable doubt. The record supported the county court’s
factual findings.
ASSIGNmeNTSo Ferror
Thompson assigns the following errors: The county court
erred in (1) receiving exhibits into evidence without sufficient
foundation; (2) overruling his motion to dismiss for lack of
a prima facie case; (3) finding Thompson guilty without suf-
ficient evidence; (4) imposing an excessive sentence; and (5)
overruling Thompson’s rule 404 motions regarding evidence
of other crimes, wrongs, or acts. Thompson also claims that
the county court erred in receiving a tape of the 911 call into
evidence when it was hearsay and violated his right of confron-
tation and that the district court erred in finding that admission
of the evidence was harmless error. Finally, Thompson argues
324 	278N eBrASkA reporTS

that the cumulative effect of all the errors deprived him of his
constitutional right to a public trial by a fair and impartial
fact finder.
ANALYSIS
This case is before us as an appeal from the district court,
which sat as an intermediate appellate court. In an appeal of a
criminal case from the county court, the district court acts as
an intermediate court of appeal, and as such, its review is lim-
ited to an examination of the county court record for error or
abuse of discretion. State v. Royer, 276 Neb. 173, 753 N.W.2d
333 (2008). Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error
appearing on the record. Id.
admissiOn Of evidence
Thompson first argues that the county court erred in receiv-
ing into evidence exhibits 1 through 5, which are photographs
of Goff. He argues that foundation was lacking for the admis-
sion of the photographs, because there was no confirmation of
the identity of the person in the photographs.
Stumbo testified that he took the photographs of Goff and
that the photographs were true and accurate depictions of Goff
as she appeared on the date of the incident. Thompson claimed
error because Stumbo had not testified as to how he identified
the person in the photographs. The objection was overruled.
[3] An objection based upon insufficient foundation is a
general objection. State v. King, 269 Neb. 326, 693 N.W.2d 250
(2005). If such an objection is overruled, the objecting party
may not complain on appeal unless (1) the ground for exclu-
sion was obvious without stating it or (2) the evidence was not
admissible for any purpose. Id. Thompson has not suggested
that the ground for exclusion of the photographs was obvious.
Nor has he argued that the photographs were not admissible for
any purpose.
[4] Thompson’s argument revolves around whether Stumbo
identified Goff as the individual he talked to at the site of the
assault and as the person who was portrayed in the photo-
graphs. As a general rule, photographic evidence is admissible
STATe v.TH ompSoN 	325
Cite as 278 Neb. 320

when it is shown that it is a correct reproduction of what it
purports to depict. See State v. Anglemyer, 269 Neb. 237, 691
N.W.2d 153 (2005). “This is often proved by the testimony of
the one who took the photograph.” Id. at 246, 691 N.W.2d at
161-62. At trial, Stumbo described Goff’s injuries and stated
that he took the photographs of her.
[5] A trial court’s determination of the admissibility of
physical evidence will not ordinarily be overturned except for
an abuse of discretion. State v. Jacobson, 273 Neb. 289, 728
N.W.2d 613 (2007). The district court found no abuse of dis-
cretion in the county court’s receipt into evidence of the photo-
graphs. The finding was correct.
[6] Thompson also objects to the county court’s receipt into
evidence of exhibit 6, the tape recording of the call to police.
on appeal to this court, he claims that the tape was hearsay and
violated his rights to confrontation and cross-examination. We
note first, however, that Thompson did not raise the confronta-
tion argument on appeal to the district court in his assignments
of error, and the district court did not address the argument in
its order. When an issue is raised for the first time in an appel-
late 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. State v. Pieper, 274 Neb. 768,
743 N.W.2d 360 (2008). Thus, we need not address whether
the tape violated Thompson’s right to confrontation.
We then turn to the question of whether the tape was hear-
say. The record shows that the 911 operator testified that she
took the call on the police nonemergency telephone number.
She stated that she had listened to the tape and that it was a
true and accurate copy of the conversation she had with a per-
son who identified herself as Goff. Thompson did not object.
When the operator was asked to describe Goff’s tone of voice
or demeanor, Thompson’s objection on the basis of specula-
tion was overruled. The operator stated that Goff said she had
been assaulted, and Thompson raised a hearsay objection.
The objection was overruled, and after the operator stated that
Goff said the assault had just occurred, Thompson asked for a
continuing objection on the basis of hearsay and insufficient
326 	278N eBrASkA reporTS

foundation. The continuing objection was noted and overruled
by the court.
The operator again stated that the tape was a true and accu-
rate copy of the telephone conversation with a female who
identified herself as Goff and that Goff said the person who
assaulted her was Thompson. The State offered the tape into
evidence, and Thompson objected on the basis of hearsay and
insufficient foundation. Thompson’s counsel stated, “I don’t
know if the State’s attempting to elicit the [statement] under
an excited utterance.” The tape was received into evidence and
played for the court.
The district court did not mention the excited utterance
exception to the hearsay rule in its order, but Thompson sug-
gests in his brief to this court that the excited utterance excep-
tion was the presumed ground for the county court’s admission
of the tape. The record does not support Thompson’s sugges-
tion that the county court admitted the tape into evidence as
an excited utterance.r ather, it appears that the district court
reviewed the admission of the call to police as a witness’
pretrial identification of a defendant. The court cited State v.
Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992), in which
this court stated that a witness’ pretrial statement identifying
a defendant as the perpetrator of a crime is hearsay pursuant
to Neb.e vid.r . 801(3), Neb.r ev. Stat. § 27-801(3) (reissue
2008), and inadmissible under Neb.e vid.r . 802, Neb.r ev.
Stat. § 27-802 (reissue 2008).
In the case at bar, the district court determined that the tape
was inadmissible under the Nebraskae videncer ules. The
court then applied the harmless error analysis to find that the
admission of the tape may have prejudiced Thompson but that
the error was not so prejudicial as to require the court to over-
turn the county court’s decision. See State v. Hansen, 259 Neb.
764, 612 N.W.2d 477 (2000). The court found that the record
was replete with facts that could be relied on to establish the
evidence necessary to find Thompson guilty beyond a reason-
able doubt.
[7] As noted earlier, our review is for error appearing on
the record. When reviewing a judgment for errors appearing
STATe v.TH ompSoN 	327
Cite as 278 Neb. 320

on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. State
v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008). An appel-
late court nonetheless has an obligation to resolve questions
of law independently of the conclusions reached by the trial
court. Id.
[8] The district court concluded that the tape was hearsay
and was improperly received into evidence by the county
court. In a bench trial of a law action, including a criminal
case tried without a jury, erroneous admission of evidence is
not reversible error if other relevant evidence, admitted without
objection or properly admitted over objection, sustains the trial
court’s factual findings necessary for the judgment or decision
reviewed; therefore, an appellant must show that the trial court
actually made a factual determination, or otherwise resolved a
factual issue or question, through the use of erroneously admit-
ted evidence in a case tried without a jury. State v. Harms, 264
Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The
appellant must show that the trial court made a finding of guilt
based exclusively on the erroneously admitted evidence. State
v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000). If there is other
sufficient evidence to support the finding of guilt, the convic-
tion will not be reversed. Id. The burden rests on the appellant
in a bench trial because of the presumption that the trial court,
sitting as the fact finder, disregards inadmissible evidence.
State v. Harms, supra. We conclude there was other sufficient
evidence to support the finding of guilt.
This was a bench trial.r uleau provided eyewitness testi-
mony as to the assault of Goff by Thompson. Hansen, the
neighbor, testified that she heard a woman screaming for help
and that Thompson was present while the woman was scream-
ing. Stumbo took photographs of Goff showing her injuries,
and he testified to the accuracy of the depictions in the photo-
graphs. The district court’s decision concerning the tape con-
formed to the law, was supported by competent evidence, and
was not arbitrary, capricious, or unreasonable. Thompson’s
assignments of error concerning the admission of evidence
have no merit.
328 	278N eBrASkA reporTS

mOtiOn tO dismiss and sufficiency Of evidence
Thompson argues that the county court erred in overruling
his motion to dismiss for lack of a prima facie case. Subsumed
in this claim is Thompson’s assertion that the evidence was
insufficient to sustain the conviction. His arguments are based
on the failure of the State to elicit testimony from Goff, the
alleged victim. The district court found that the facts estab-
lished by the other witnesses clearly met the State’s burden of
proof to establish a prima facie case against Thompson.
[9] Thompson does not provide any case law to support his
claim that the evidence was insufficient because the alleged
victim did not testify. There is no statute requiring a victim to
testify in a criminal case. This court must review only whether
the evidence was sufficient. In so doing, whether the evidence
is direct, circumstantial, or a combination thereof, the standard
is the same: An appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v.
Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009). The county
court heard and observed the witnesses and was able to assess
their credibility, and it found sufficient evidence to convict
Thompson of violating the municipal code. The district court
also found that the evidence was sufficient and that there was
no error in the county court’s failing to sustain the motion to
dismiss because Goff did not testify.
We agree. As noted above, there was eyewitness testimony
to Thompson’s pushing Goff to the ground. A police officer
took photographs of the injuries Goff sustained. A neighbor
heard Thompson and Goff arguing. These assignments of error
have no merit.
excessive sentence
Thompson claims the county court erred in imposing an
excessive sentence. He argues that a lesser sentence would
have satisfied the purpose of sentencing.
[10,11] Thompson was sentenced to a term of 100 days in
jail. Although he mentions ap SI in his brief and the district
court referred to ap SI, there is no such report in the record.
In fact, the probation office has indicated in a letter that it did
STATe v.TH ompSoN 	329
Cite as 278 Neb. 320

not conduct a presentence investigation.r egardless, Thompson
was convicted of a misdemeanor that was punishable by a term
of imprisonment not to exceed 6 months, a fine not to exceed
$500, or both. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by
the trial court. State v. Moore, 277 Neb. 111, 759 N.W.2d 698
(2009). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Id. Thompson has not demonstrated any abuse of
discretion on the part of the county court in imposing the sen-
tence, and the district court was correct in affirming it.
rule 404 mOtiOns
[12] Thompson assigns as error the county court’s over-
ruling his rule 404 motions regarding evidence of other crimes,
wrongs, or acts. He does not make any argument before this
court related to the assignment, and he apparently did not pre-
sent any argument to the district court on the issue. An alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered by
an appellate court. State v. Amaya, 276 Neb. 818, 758 N.W.2d
22 (2008). Because Thompson offers no argument in support of
the assigned error, we need not address it.
cOnstitutiOnal riGht tO fair trial
Finally, Thompson argues that the cumulative effect of all
the errors deprived him of his constitutional right to a public
trial by a fair and impartial fact finder. The district court found
no basis to this claim, and neither does this court. We have
previously discussed the testimony presented to the trial court
byr uleau, the eyewitness; Hansen, the neighbor; and Stumbo,
the police officer. In addition, the county court was provided
photographs of Goff’s injuries.
[13,14] A conviction in a bench trial of a criminal case is sus-
tained if the properly admitted evidence, viewed and construed
most favorably to the State, is sufficient to support that convic-
tion. See State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003). In
making this determination, an appellate court does not resolve
330 	278N eBrASkA reporTS

conflicts in evidence, pass on credibility of witnesses, evaluate
explanations, or reweigh evidence presented, which are within
a fact finder’s province for disposition. Id. 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.
Id. Applying these standards to the case at bar, we find no error
on the part of the county court or the district court.
CoNCLUSIoN
The judgment of the district court, which affirmed the con-
viction and sentence of the county court, is affirmed.
affirmed.
IN reC ompLAINTAGAINST mArCUzzo 	331
Cite as 278 Neb. 331
in re cOmplaint aGainst Jeffrey l. marcuzzO,
cOunty cOurt JudGe Of the fOurth Judicial
district Of the state Of nebraska .
state Of nebraska ex rel . cOmmissiOn On Judicial
Q ualificatiOns , relatOr , v. Jeffrey l.
marcuzzO, respOndent.
770 N.W.2d 591
Filed August 7, 2009. 	No. S-35-080001.
1. Judges: Disciplinary Proceedings: Appeal and Error. In a review of the find-
ings and recommendations of the Commission on Judicial Qualifications, the
Nebraska Supreme Court shall review the record de novo and file a written opin-
ion and judgment directing action as it deems just and proper, and may reject or
modify, in whole or in part, the recommendation of the commission.
2. Judges: Disciplinary Proceedings. Upon consent of the respondent in a judicial
discipline proceeding, an order of reprimand, discipline, suspension, retirement,
or removal may be entered by the Nebraska Supreme Court at any stage of
the proceedings.
3. ____: ____.p ursuant to Neb.r ev. Stat. § 24-722(6) (reissue 2008), a judge of
any court of this state may be reprimanded, disciplined, censured, suspended
without pay for a definite period not to exceed 6 months, or removed from office
for conduct prejudicial to the administration of justice that brings the judicial
office into disrepute.