State v. ScottState v. Scott
Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which the Nebraska Supreme Court is obligated to reach conclusions independent of those reached by the court below. - Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.
- Rules of Evidence. 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.
- Rules of Evidence: Appeal and Error. 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.
- Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
- Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court‘s decision regarding relevance will not be reversed absent an abuse of discretion.
- Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court‘s hearsay ruling and review de novo the court‘s ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.
- Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court‘s determination will not be disturbed. - 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. 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.
- Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.
- Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of constitutionality.
- Constitutional Law: Statutes: Appeal and Error. As a general rule, in a challenge to the overbreadth and vagueness of a law, a court‘s first task is to analyze overbreadth.
- Constitutional Law: Statutes. A statute is unconstitutionally overbroad and thus offends the First Amendment if, in addition to forbidding speech or conduct which is not constitutionally protected, it also prohibits the exercise of constitutionally protected speech. A statute may be invalidated on its face, however, only if its overbreadth is “substantial,” i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies. Stated another way, in order to prevail upon a First Amendment facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is “substantially” overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.
- Criminal Law: Intent. Mens rea should apply to each of the statutory elements which criminalize otherwise innocent conduct.
- ____: ____.
Neb. Rev. Stat. § 28-1351 (Cum. Supp. 2012) requires that at the time of an alleged violation, the defendant had actual knowledge that members of a group engage in or have engaged in any of the specified criminal activities for the benefit of, at the direction of, or on behalf of the organization, group, enterprise, or association or any of its members. - Constitutional Law: Criminal Law: Statutes.
Neb. Rev. Stat. § 28-1351 (Cum. Supp. 2012) is not so overbroad as to infringe First Amendment rights of association. - ____: ____: ____. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
- Constitutional Law: Statutes: Standing. To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and furthermore cannot maintain that the statute
is vague when applied to the conduct of others. A court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court. The test for standing to assert a vagueness challenge is the same whether the challenge asserted is facial or as applied. - Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material. The defendant must prove that the alleged error actually prejudiced him or her, rather than created only the possibility of prejudice.
- Trial: Due Process: Evidence. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith or the prosecution.
- Evidence: Words and Phrases. Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
- Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant.
- Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
- Judges: Trial. As a general rule, a judge is required to be present at all stages of a trial.
- ____: ____. The temporary absence of the trial judge is not reversible error unless the defendant shows prejudice resulting from the absence.
- Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.
- Appeal and Error: Words and Phrases. Plain error is error of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge. Affirmed in part, and in part vacated and remanded with directions for resentencing.
Steve Lefler, of Lefler & Kuehl Law, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
NATURE OF CASE
Steven D. Scott appeals his convictions for second degree assault, use of a deadly weapon to commit a felony, and unlawful membership recruitment into an organization or association, a Class IV felony under
STATEMENT OF FACTS
The charges against Scott arose from allegations that he assaulted Samuel Kelley on November 20, 2010. Kelley testified at trial that he met Scott when they were both middle school students. Kelley and Scott were friends through middle school and high school.
Kelley testified that he was “kicked out” of his parents’ house in October or November 2009 when he was 20 years old. Scott offered to let Kelley stay at his apartment. Kelley knew that in high school, Scott and three of his friends called themselves “the White Rider Clique.” Scott was still involved with the group when Kelley moved into Scott‘s apartment in 2009. While staying with Scott, Kelley came to realize that the group was involved in criminal activities. Scott referred to the group as the “family,” and the group would have “family meetings” where they would “talk about family business.” Scott was one of the “bosses,” and Scott described the group to Kelley as a criminal organization whose hierarchy was based on the characters from the television series the “Sopranos.” The goals of the group were to “start small and get big and recruit.” Scott
Kelley testified that Scott asked Kelley to sell marijuana for him. Kelley agreed to do so because he was short on cash. Their arrangement was that Scott would front Kelley an ounce of marijuana and that Kelley would pay Scott $90 after he had sold the ounce, keeping any additional money from the sale. Scott obtained the marijuana from one of the other members of the “family.” Kelley sold marijuana for Scott three or four times during the month that he lived with Scott.
Kelley testified that Scott also asked him to get close to two known drug dealers they had met at a party in order to determine their whereabouts so that Kelley and Scott “could jump them and steal their drugs or cash or whatever they had on them.” Kelley said “yes” to Scott, but instead of carrying out the plan, Kelley warned the targets of Scott‘s intent.
On November 20, 2009, Kelley signed up to join the U.S. Army Reserve. Kelley told Scott that because he had joined the Army, he would no longer sell marijuana. Scott told Kelley that he still had to sell one last ounce that Scott had obtained for him but that whether or not he sold the ounce, he still owed Scott $90. Kelley moved back to his parents’ home and left the ounce of marijuana at Scott‘s apartment. Kelley did not answer Scott‘s calls over the next 2 weeks because he knew Scott wanted him to sell the ounce of marijuana. Scott and another member of the “family” came to see Kelley at his parents’ house. Scott told Kelley that because he did not join the “family,” in addition to the $90 Kelley owed for the ounce of marijuana, he owed Scott rent for the time he stayed in the apartment. Scott told Kelley to pay $300 “or bad things are going to happen.” Kelley did not pay, and he avoided contact with Scott until he left for basic training in South Carolina in February 2010.
Kelley returned to Omaha in August 2010. Kelley did not see Scott again until a night in November when he was leaving a party at his friend Nate Chalupa‘s house and, as he got into his car, Scott “ran up behind [Kelley], hit [him] with a
The State charged Scott with second degree assault, use of a deadly weapon to commit a felony, and terroristic threats. The State amended the information to add a count of unlawful membership recruitment into an organization or association in violation of At trial, the State presented Kelley‘s testimony as described above. During Kelley‘s testimony, the State asked about the police investigation of his allegations against Scott. Kelley testified that after he talked to police at the hospital, officers came to his house to question him about the assault. The State asked, “And did they show you a photo line-up?” to which The next day, outside the presence of the jury, the court stated that it would sustain Scott‘s hearsay objection to the questioning regarding the photographic identification and would instruct the jury to disregard it. The court overruled the motion for a mistrial, reasoning that the witness had already identified the defendant and that an instruction to the jury to disregard the questioning would be adequate. When the jury returned to the courtroom, the court instructed as follows: “Yesterday right when we finished, there was a back and forth about a photo array and an objection was made regarding that exchange. The objection is sustained, and you will please disregard the exchange having to do with the photo array.” The State continued its direct examination of Kelley. The court did not give, and Scott did not request, a written instruction on the matter. Later in the trial, the State called Novacek, the friend who was with Kelley at the time of the assault, as a witness. During Novacek‘s direct examination, the State asked Novacek whether he recognized anyone in the courtroom as the person who assaulted Kelley, and Novacek identified Scott. The court overruled Scott‘s objection based on foundation and improper discovery. The State twice asked Novacek whether police had asked him to identify the assailant or had shown him a photographic lineup. The court twice overruled an objection by Scott, and Novacek twice replied, “No.” After Novacek‘s testimony, the court called a recess, during which Scott moved for a mistrial on the basis that the State had not disclosed prior to trial that Novacek would identify Scott as the assailant. Scott‘s counsel stated that he had been told that Kelley and Chalupa were the only witnesses who would identify Scott. Scott‘s counsel argued that if he had During the State‘s redirect examination of one of the police detectives, the State asked the detective whether photographic lineups, if they had been done, would have been done by other detectives. The court overruled Scott‘s objection, and the detective replied that if lineups were done, they would have been done by others. At the beginning of the trial, Scott filed a motion in limine to prevent admission of evidence that the police had found firearms during searches of Scott‘s vehicle and his home. The court reserved ruling on the motion in order to consider the evidence in the context in which it was offered. An officer who searched Scott‘s home and vehicle testified at trial that he found an assault rifle in Scott‘s home and firearms in the glove box and trunk of his vehicle. The court overruled Scott‘s relevance objections. In his defense, Scott presented testimony of witnesses, including Grant Arbaugh, who testified that he was at the party the night Kelley was assaulted. Arbaugh witnessed the assault and saw the attacker after the ski mask came off. Arbaugh stated that he knew Scott and that the attacker was not Scott. During cross-examination, the State asked Arbaugh where on his body he had tattoos. The court overruled Scott‘s objection based on relevance. Arbaugh testified that he had tattoos on his knees and back and in response to further questioning testified that the tattoo on his back said “Family above all.” On redirect examination by Scott, Arbaugh testified that the tattoo referred to his actual family rather than to his friends. After deliberations, the jury found Scott guilty of second degree assault, use of a deadly weapon to commit a felony, and unlawful membership recruitment into an organization or association. The jury found him not guilty of terroristic threats. The court entered judgment based on the verdicts. The court sentenced Scott to imprisonment for 4 to 5 years for second degree assault, 4 to 5 years for use of a deadly weapon, and 1 to 2 years for unlawful membership recruitment. The court ordered the sentences on the assault and use of a deadly weapon convictions to be served consecutively to one another and ordered the sentence on the unlawful recruitment conviction to be served concurrently to the other two sentences. Scott appeals his convictions and sentences. Scott claims that the court erred when it (1) rejected his constitutional challenges to [1] The constitutionality and construction of a statute are questions of law, regarding which we are obligated to reach conclusions independent of those reached by the court below. State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011). [2] The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). [3-5] 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. State v. Vigil, supra. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011). [7] Apart from rulings under the residual hearsay exception, we will review for clear error the factual findings underpinning a trial court‘s hearsay ruling and review de novo the court‘s ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds. State v. Vigil, supra. [8] In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court‘s determination will not be disturbed. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). [9] 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. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). And in our review, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact. Id. [10] Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). Scott first claims that the district court erred when it rejected his constitutional challenges to The statute challenged by Scott, A person commits the offense of unlawful membership recruitment into an organization or association when he or she knowingly and intentionally coerces, intimidates, threatens, or inflicts bodily harm upon another person in order to entice that other person to join or prevent that other person from leaving any organization, group, enterprise, or association whose members, individually or collectively, engage in or have engaged in any of the following criminal acts for the benefit of, at the direction of, or on behalf of the organization, group, enterprise, or association or any of its members[.] The statute thereafter lists various criminal acts, including, inter alia, robbery, assault, theft, and violations of the Uniform Controlled Substances Act involving possession with intent to deliver, distribution, delivery, or manufacture of a controlled substance. [11] We note first that a statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of constitutionality. Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808 N.W.2d 598 (2012). We further note that the wisdom of a statute is not at issue in a constitutional challenge and that it is not this court‘s duty to determine whether the statute should have been enacted. See Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 545-46, 731 N.W.2d 164, 176 (2007) (this court “‘does not sit as a superlegislature to review the wisdom of legislative acts‘“) (quoting Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003)). Scott‘s First Amendment arguments are interwoven with his overbreadth arguments. In effect, he argues that [12,13] As a general rule, in a challenge to the overbreadth and vagueness of a law, a court‘s first task is to analyze overbreadth. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). A statute is unconstitutionally overbroad and thus offends the First Amendment if, in addition to forbidding speech or conduct which is not constitutionally protected, it also prohibits the exercise of constitutionally protected speech. Id. A statute may be invalidated on its face, however, only if its overbreadth is “substantial,” i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies. Id. Stated another way, in order to prevail upon a First Amendment facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is “substantially” overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court. See id. As support for his argument that We do not believe the rationale of the partial dissent in Manzanares controls the outcome of the current challenge. As an initial matter, the Idaho statute at issue in Manzanares Furthermore, [14,15] We further note that [16] With this reading of the statute, we conclude that [17,18] With regard to Scott‘s vagueness challenge, we note that the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. See State v. Rung, supra. To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and furthermore cannot maintain that the statute is vague when applied to the conduct of others. Id. A court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court. Id. The test for standing to assert a vagueness challenge is the same whether the challenge asserted is facial or as applied. Id. Scott‘s argument with regard to vagueness is not entirely clear. He argues that the statute does not clearly define a “criminal gang.” However, Having concluded that Scott has not shown that Scott claims that the district court erred when it overruled his motion for mistrial based on Kelley‘s testimony that the police had shown him a photographic array and that he was able to pick someone out of the array. We conclude that such testimony did not warrant a mistrial. Although we have held that testimony regarding an out-of-court identification is hearsay, see State v. Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992), in this case, Kelley did not testify that he identified Scott in a photographic lineup, only that he was shown the lineup and that he was able to identify “someone.” To the extent it could be inferred that he identified Scott, we note that the trial court ruled the testimony inadmissible and instructed the jury to disregard it. Furthermore, the instructions at the end of the trial included an instruction that the jury was not to consider any evidence the judge had told them to disregard. [19] The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material. Id. The defendant must prove that the alleged error actually prejudiced him or her, rather than created only the possibility of prejudice. Id. Scott argues that despite the court‘s instruction, there was prejudice because the State “reintroduced” the evidence when We conclude that the district court did not abuse its discretion when it overruled Scott‘s motion for mistrial based on testimony related to any photographic array. Scott claims that the district court erred when it rejected his challenge based on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to Novacek‘s in-court identification of Scott. He asserts that the State had not told him prior to trial that Novacek would identify him. Scott argues that if he had known Novacek was going to identify him, he would have prepared differently for his cross-examination of Novacek and would have deposed Novacek prior to trial. We conclude that Brady was not applicable to this evidence and that the court did not err when it allowed the evidence. [20] In Brady, the U.S. Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith or the prosecution.” 373 U.S. at 87. We have stated that there are three components of a true Brady violation: “‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.‘” State v. McGee, 282 Neb. 387, 394, 803 N.W.2d 497, 504 (2011) (quoting Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). We conclude that there was not a Brady violation, because the evidence was not exculpatory. The district court did not err when it rejected Scott‘s challenge to the testimony. Scott claims that the district court erred when it overruled his objections to evidence that police found firearms when they searched his home and his vehicle. We conclude that the court did not err. Scott argues that his ownership of guns was not relevant to the charges against him because he was not accused of using a firearm to assault Kelley. He asserts that unfair prejudice outweighed the probative value of the evidence. As the State notes, Scott‘s objection at trial was based only on relevance. He did not assert an objection based on [21] Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Glazebrook, supra. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court‘s decision regarding relevance will not be reversed absent an abuse of discretion. Id. We conclude that the trial court did not abuse its discretion when it determined that the firearms evidence was relevant and allowed its admission. Scott claims that the district court erred when it overruled his hearsay objections to various pieces of testimony. We conclude that such instances either were not error or were harmless error. Furthermore, the admission of such items of evidence did not deny Scott due process. Scott notes various points in the trial when he raised a hearsay objection to testimony and the court overruled the objection. He makes little argument regarding any specific evidence. An example of the evidence claimed to have been prejudicial was the admission of Kelley‘s testimony regarding Scott‘s efforts to find Kelley after he moved out of Scott‘s apartment by asking Kelley‘s friends. Scott argues that he was denied due process because the court overruled numerous hearsay objections. [22,23] Having reviewed the objections noted by Scott, we conclude that to the extent the court‘s overruling any of the objections was error, it was harmless error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether The pieces of testimony noted by Scott were not of great import in the context of the trial and in light of other evidence supporting the charges against Scott. A rational trier of fact would not have accorded much weight to the items complained of, and the outcome was surely not attributable to their admission. To the extent any of the testimony cited by Scott was inadmissible hearsay, we conclude that its admission was harmless error. Scott was not denied due process. Scott claims that the district court erred when it overruled his relevance objections to questions during the State‘s cross-examination of Arbaugh. We reject this argument. Arbaugh was a witness for the defense. In its cross-examination of Arbaugh, the State asked questions regarding Arbaugh‘s tattoos, which included a tattoo that read “Family Above All.” Scott argues the testimony was unfairly prejudicial because it indicated that Arbaugh was in a gang with Scott and that it was improperly used to damage Arbaugh‘s credibility. The testimony was only that Arbaugh had the tattoo and what it said. There was no testimony to the effect that the tattoo meant he was part of a gang, and to the contrary, Arbaugh testified on redirect that it referred to his actual family, not to his group of friends. To the extent the State was asking the questions in an attempt to show that Arbaugh was a member of the “family” about which Kelley testified, such evidence was relevant to the jury‘s assessment of Arbaugh‘s credibility. Such evidence would show the nature of his association with Scott. Any prejudice which might result was not unfair prejudice, because it was relevant and Scott had the opportunity on redirect to let Arbaugh explain the meaning of the tattoo. We conclude that the district court did not abuse its discretion by allowing this evidence, and we reject this assignment of error. Scott claims that the district court erred when it overruled his motion for new trial based on several brief instances in which the trial judge absented himself from the courtroom. Although we disapprove of the judge‘s practice, we conclude that Scott did not establish prejudice resulting from the judge‘s absences and that the district court did not err when it overruled the motion for new trial on this basis. [24,25] In State v. Smith, 256 Neb. 705, 710, 592 N.W.2d 143, 147 (1999), we stated that “[a]s a general rule, a judge is required to be present at all stages of a trial.” However, we have recognized that “the absence of the trial judge from the courtroom is not always prejudicial.” Id. In both Smith and Shaffer v. State, 124 Neb. 7, 244 N.W. 921 (1932), this court concluded that under the circumstances of those particular cases, the record did not show that any prejudicial error resulted from the temporary absence of the judge and that therefore, the absence did not amount to reversible error. In Smith, we cited with favor cases from other jurisdictions holding that the temporary absence of the trial judge is not reversible error unless the defendant shows prejudice resulting from the absence. In the present case, Scott has not shown prejudice resulting from the trial judge‘s conduct. He argues that the absences sent a message to the jury that those portions of the trial when the judge left were not important. However, Scott made no objection to the judge‘s absences during the trial and made no record of such absences or how such absences correlated to particular testimony. The affidavits that Scott submitted in support of his motion for new trial were not specific regarding the number of absences or the points in the trial when such absences occurred. Scott has not shown with any specificity the number, duration, or timing of the absences and has not shown any prejudice that resulted from the absences. As we noted in the above-cited cases, we again emphasize that a judge should be present at all stages of the trial and Scott asserts that there was insufficient evidence to establish that Scott was part of a “gang” under Scott‘s argument regarding sufficiency of the evidence relates only to his conviction under We acknowledge first that the assault on November 20, 2010, might not be evidence to support the conviction under We conclude that there was sufficient evidence to support Scott‘s conviction under Scott asserts that the cumulative impact of all errors of which he complains resulted in an unfair trial. He also claims that the district court erred when it overruled his motion for new trial based on various errors during trial. Scott‘s argument in this regard is dependent upon the arguments we have already rejected with respect to his other assignments of error. Therefore, we also find these assignments of error to be without merit. See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). Finally, Scott asserts that the district court imposed excessive sentences. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Howard, supra. Although we conclude below that the district court committed plain error when it failed to make the use of a deadly weapon sentence consecutive to all other sentences, we conclude that the length of the sentences as to each count was not an abuse of discretion. In the sentencing order filed October 17, 2011, the district court ordered the following sentences: assault count, 4 to 5 years, consecutive to the use of a deadly weapon count and concurrent with the unlawful recruitment count; use of a deadly weapon count, 4 to 5 years, consecutive to the assault count and concurrent with the unlawful recruitment count; and unlawful recruitment count, 1 to 2 years, concurrent to the assault count and concurrent to the use of a deadly weapon count. Scott acknowledges that the sentences were within statutory limits, but he argues that they were “excessive and disproportionate to the severity of the offense when considered with his background and lack of prior record.” Brief for appellant at 43. He notes that for the three convictions, he was sentenced to imprisonment for a total of 8 to 10 years. Scott gives little The State refers us to the record where the sentencing court stated that the crime was a serious crime of violence with no rational motivation. The State notes the violent nature of the offense, Scott‘s unwillingness to take responsibility, and the probation officer‘s recommendation for substantial periods of incarceration. The State concedes Scott‘s lack of criminal history, but notes that he scored in the very high risk range for procriminal attitude/orientation and the high risk range for antisocial behavior. In light of the considerations noted by the sentencing court and the State, we conclude that Scott has not shown that the sentencing court abused its discretion with respect to the amount of time imposed on each count. We reject Scott‘s argument that the court imposed excessive sentences. Although we reject Scott‘s argument that the district court imposed excessive sentences, we note plain error because the court explicitly ordered Scott‘s sentence for use of a deadly weapon to be served concurrently with his sentence for unlawful recruitment. The sentence for use of a deadly weapon should have been ordered to run consecutively to any other sentence imposed. We therefore vacate that portion of the sentence and remand the cause to the district court with directions to enter a new sentencing order in which the sentence for use of a deadly weapon is ordered served consecutively to all other sentences. [26,27] An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009). Plain error is error of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. State v. Huff, supra. Furthermore, by making the use of deadly weapon sentence concurrent with the unlawful recruitment sentence, which in turn was ordered to run concurrently with the assault sentence, the court also implicitly ordered the use of a deadly weapon sentence to run concurrently with the assault sentence. Such result would also violate We therefore vacate the portion of the sentencing order in which the court stated that Scott‘s sentence for use of a deadly weapon should run concurrently with his sentence for unlawful recruitment. We remand the cause to the district court with directions to enter a new sentencing order in which the sentence for use of a deadly weapon is ordered to run consecutively to both the sentence for assault and the sentence for unlawful recruitment. The sentence for use of a deadly weapon shall not We conclude that the district court did not err when it rejected the constitutional challenges to AFFIRMED IN PART, AND IN PART VACATED AND REMANDED WITH DIRECTIONS FOR RESENTENCING.STANDARDS OF REVIEW
ANALYSIS
The District Court Did Not Err When It Rejected Scott‘s Claim That
Testimony Regarding Photographic Array Identification Did Not Merit a Mistrial.
The District Court Did Not Err When It Allowed Novacek to Identify Scott at Trial.
The District Court Did Not Err When It Admitted Evidence That Firearms Were Found During Searches of Scott‘s Home and Vehicle.
The District Court Did Not Commit Reversible Error When It Rejected Scott‘s Hearsay Objections.
The District Court Did Not Err When It Admitted Evidence Regarding Grant Arbaugh‘s Tattoos.
There Was Sufficient Evidence To Support Scott‘s Conviction for Violating
The District Court Did Not Impose Excessive Sentences.
The District Court Committed Plain Error When It Failed to Order That Scott‘s Sentence for Use of a Deadly Weapon Be Served Consecutively to All Other Sentences.
CONCLUSION