Opinion
No. 81-910.
Filed July 23, 1982.
1. Evidence: Appeal and Error. This court will not entertain objection to the admission of evidence when no objection thereto has been made in a proper and timely fashion at the trial level. 2. Convictions: Appeal and Error. This court will not set aside a conviction unless the defendant meets his burden of showing that the error claimed created not merely a possibility of prejudice but, rather that it worked to his actual prejudice.
Appeal from the District Court for Sarpy County: RONALD E. REAGAN, Judge. Affirmed.
James P. Miller and Owen A. Giles, for appellant.
Paul L. Douglas, Attorney General, and Shanler D. Cronk, for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
This criminal appeal originates from defendant-appellant's conviction by the District Court of Nebraska, Second Judicial District, in and for Sarpy County, pursuant to a jury verdict on charges of attempted first degree assault and burglary.
Defendant, Randy S. Gore, urges that the trial court abused its discretion by (1) receiving evidence of an "excessive" number of defendant's prior misdemeanor convictions, and (2) allowing defendant to be cross-examined on convictions which did not involve dishonesty or false information.
The record is such that the jury could find the defendant, recently released from jail, visited his ex-wife Patricia Gore's apartment in the afternoon of July 10, 1981, at which time one Mike Raven was present. At that time defendant expressed displeasure at Raven's presence; he left and later reappeared at the apartment with his brother-in-law. On this occasion defendant and Raven argued and defendant again left. Raven spent the night at the apartment with Mrs. Gore. At about 1 a.m. she discovered defendant, who had pried open the patio door to gain entrance, inside the apartment. Mrs. Gore sprayed defendant with Mace in an unsuccessful attempt to get him to leave the apartment. Raven secluded himself in a bedroom and asked Mrs. Gore to call the police. She ran next door to the home of Gary and Linda Millsap to comply. Defendant, after attempting to kick down the bedroom door at Mrs. Gore's apartment, went outside. At that point Raven ran downstairs and out the front door, whereupon he was attacked by defendant with a tire iron. Raven proceeded to the Millsap house and was followed by defendant, who then attacked the front door of the neighbor's apartment. At this point defendant kicked at the neighbor's front door while at the same time yelling obscenities and threats to kill Raven. There is evidence that Raven had a knife. Defendant was accompanied during this time by a friend, Kenneth Woods, who was and had been outside the apartment. The police subsequently arrived; Mr. Millsap and Raven went outside, at which time defendant again attacked Raven. Woods also attacked Raven and defendant then again attacked Raven while continuing to make threats on Raven's life.
During defendant's direct examination he testified that as a result of the divorce action filed by his ex-wife in 1981, he did some "stupid things"; that he had been arrested and convicted of six or seven misdemeanor crimes for "[d]isorderly conduct, false information to a police officer, assault, assault, assault," and that the assaults involved his ex-wife and sister. During cross-examination of defendant the court received, without objection, an Omaha Municipal Court register of misdemeanor actions concerning a March 13, 1981, assault and battery upon Patricia Gore by defendant. The court also received in evidence, without objection, three other misdemeanor registers of action. These concerned a disorderly conduct charge, an assault and battery charge, and a damage to property charge, all arising from an April 29, 1981, incident between defendant and his sister. In addition the court received, over defendant's objection, three other misdemeanor registers of action. These dealt with charges against defendant for resisting arrest and giving false information concerning a September 2, 1981, incident and a false information charge concerning a May 9, 1981, incident.
Defendant argues that the misdemeanor convictions which do not involve dishonesty or false statements were inadmissible under the provisions of Neb. Rev. Stat. § 27-609(1) (Reissue 1979), which provides: "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (b) involved dishonesty or false statement regardless of the punishment."
The problem with that argument is that this court will not entertain objection to the admission of evidence when no objection thereto has been made in a proper and timely fashion at the trial level. Lindgren v. City of Gering, 206 Neb. 360, 292 N.W.2d 921 (1980); Scudder v. Haug, 201 Neb. 107, 266 N.W.2d 232 (1978); Erving v. State, 174 Neb. 90, 116 N.W.2d 7 (1962), cert. denied 375 U.S. 876, 84 S.Ct. 151, 11 L.Ed.2d 121 (1963); Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884).
It may well be that in view of defendant's prior testimony the registers themselves were cumulative evidence. In this regard we note that defendant objected, without stating as a ground that this evidence was cumulative, to only three of the ten documents regarding prior misdemeanor convictions received in evidence. He had already told the jury about the events covered in two of those documents; he had not testified about resisting arrest. In view of the totality of the record it cannot be said that the one item which was not previously disclosed by defendant on direct examination prejudiced him.
This court will not set aside a conviction unless the defendant meets his burden of showing that the error claimed created not merely a possibility of prejudice but, rather, that it worked to his actual prejudice. State v. Smith, 187 Neb. 152, 187 N.W.2d 753 (1971); State v. Stroh, 181 Neb. 24, 146 N.W.2d 756 (1966); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
We find the defendant had a fair trial and affirm the judgment of the trial court.
AFFIRMED.