State v. Tolbert

732 	288 NEBRASKA REPORTS
State of NebraSka, appellee, v.
aNgelo tolbert, appellaNt.
851 N.W.2d 74
Filed August 1, 2014. 	No. S-13-847.
1. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the
evidence claim, 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. 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.
2. Sentences. Imposing a sentence within statutory limits is a matter entrusted to the
discretion of the trial court.
3. 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.
4. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
5. 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.
6. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
Appeal from the District Court for Douglas County: W.
M ark aShford, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Scott C.
Sladek, and Brenda J. Leuck for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heavicaN, c.J., Wright, coNNolly, StephaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

STATE v. TOLBERT 	733
Cite as 288 Neb. 732
heavicaN, c.J.
INTRODUCTION
Angelo Tolbert was convicted of first degree murder, first
degree assault, and two counts of use of a deadly weapon to
commit a felony. He was sentenced to life imprisonment on the
murder count and 40 to 50 years’ imprisonment on each of the
other three counts, to be served consecutively. Tolbert appeals.
We affirm.
FACTUAL BACKGROUND
In the early morning hours of October 21, 2012, a group of
teenagers—Montrell Wiseman, Desjuha Wilkinson, Shamika
Parks, and Onticha Gresham—were all gathered in front of the
Gresham residence near 21st and Binney Streets in Omaha,
Nebraska. The group noticed a van drive past slowly on two
occasions. After the van’s second pass, the group became
nervous and decided to go into the house. As the group made
its way into the house, two shots were fired. One shot struck
and injured Wilkinson. Another struck and killed Wiseman. It
was later determined that due to their red-colored clothing, the
group of teenagers was mistakenly targeted by the shooter as
being members of a rival gang.
A neighbor, Vincent Anderson, 	witnessed 	the 	shooting.
Anderson testified that he heard a vehicle coming up the alley
behind his house, so he looked out the window and saw a van.
Anderson testified that he went outside because he was con-
cerned that the van was there to dump trash at a nearby con-
demned house. As Anderson exited his house and headed into
the alley, he heard a “boom,” saw a flash, and witnessed an
individual located behind the van’s driver, holding a shotgun.
In addition, Parks testified that she also saw a flash coming
from the driver’s side of the vehicle and that she thought the
sliding door to the van might have been open.
After the shooting, the van crashed into a nearby pole.
Witnesses reported seeing four individuals flee the van follow-
ing the crash, but one returned. A fifth individual never left
the scene. Parks also testified that she witnessed some of the
individuals in the van flee following the shooting and that she
thought one might have been carrying “a long gun.”

734 	288 NEBRASKA REPORTS
Anderson also testified that he saw one of the individuals,
though not the driver, leave the van with “something long”
that might have been a gun. And another neighbor testi-
fied that the fourth individual to leave the van was “carry-
ing something.”
The van was registered to Constance Brown. Brown testified
that on October 21, 2012, she lived near 42d and Ohio Streets
in Omaha. Besides her children, Brown testified that she
lived with her sister and several nephews, including Matthew
Saunsoci; her brother Francis Cayou; and Joshua VanAckeren.
Brown testified that in the early morning hours of October 21,
she loaned her van to VanAckeren and Cayou, so they could
go buy alcohol. Brown testified that in addition to VanAckeren
and Cayou, Tolbert and Adam Gamble were at her home, but
that she was not aware of who was with VanAckeren and
Cayou when they left in her van.
The State’s two primary witnesses at trial were Cayou and
Gamble. Gamble testified first. He testified that he was with
VanAckeren, Tolbert, and Saunsoci on October 21, 2012. He
indicated that after spending some time at the 42d and Ohio
residence, the group went “riding around” in Brown’s van.
According to Gamble, VanAckeren was driving; Cayou was in
the front passenger seat; Tolbert was seated behind the driver
in the middle row; he, Gamble, was seated in the middle row
behind the passenger; and Saunsoci was in the back seat.
Gamble testified that Cayou had a shotgun.
Gamble testified that after the group had driven around for
approximately 20 minutes, they pulled up beside two people
standing next to a car. At this point, Cayou handed Tolbert
the gun, VanAckeren stopped the van, and Tolbert got out
and shot at the people. The shooting was unsuccessful, how-
ever, because the shotgun still had the safety on. According to
Gamble, upon returning to the van, Tolbert handed the shot-
gun back to Cayou, who took it off safety. VanAckeren then
drove off.
Gamble then testified that VanAckeren stated they were
headed “down to the Bottom area,” which was rival gang
territory. Upon arriving in that area, VanAckeren and Cayou

STATE v. TOLBERT 	735
Cite as 288 Neb. 732
spotted some individuals wearing red shirts. Cayou again
handed Tolbert the gun. According to Gamble, Tolbert stepped
out of the van on the driver’s side of the vehicle and discharged
the shotgun twice. Tolbert then got back into the van, and
VanAckeren began to drive away before crashing the van.
After the crash, Gamble testified that he, Cayou, and Tolbert
exited the van and began running, leaving the shotgun in the
van. According to Gamble, after about 20 minutes, he and
Tolbert headed off together and Cayou went separately.
Cayou also testified that he, VanAckeren, Gamble, Saunsoci,
and Tolbert were together on October 21, 2012. According
to Cayou, at some point, the five left to get more alco-
hol. Consistent with Gamble’s testimony, Cayou stated that
Saunsoci was sitting in the back seat of the van, while Tolbert
and Gamble were in the middle seat on the driver’s and pas-
senger sides, respectively. Cayou testified that he was in the
front passenger seat and that VanAckeren drove. Cayou testi-
fied that VanAckeren had brought a shotgun with him into
the van.
Cayou testified that rather than going to get more alcohol,
he and VanAckeren discussed “going down to the Bottoms and
shootin’ somebody.” According to Cayou, the van first came
upon a parked car. Cayou testified that he handed Tolbert the
gun to “bust on that car,” but that the gun was on safety. Cayou
testified that he reached back and switched off the safety, but
that Tolbert kept the gun.
After this first, unsuccessful, shooting attempt, the van left
the scene. According to Cayou, the group then came upon a
group of people standing on a porch. These individuals were
wearing red, a color worn by members of a rival gang. Cayou
testified they drove by slowly, then stopped and turned off the
van lights. After the lights were off, the van began moving
again. Tolbert then opened the sliding door of the van and shot
at the individuals.
After Tolbert shot at the group, VanAckeren drove off,
but crashed the van into a pole. Cayou testified that after the
crash, everyone got out of the van except Saunsoci. Cayou
testified that he, Gamble, and Tolbert ran off down the alley,

736 	288 NEBRASKA REPORTS
with VanAckeren right behind them, carrying the shotgun.
VanAckeren disposed of the shotgun in the alley and then
returned to the van for Saunsoci.
When law enforcement arrived at the scene, they found a
van parked near a utility pole with front-end damage on the
passenger side. Two individuals were found in or near the van:
VanAckeren and Saunsoci. A shotgun was found in the alley,
and two large-caliber rifle rounds were found nearby. At the
Gresham home, Wiseman’s body was in front of the door to the
residence and inside was an injured Wilkinson.
Following the State’s case in chief, Tolbert filed a motion
to dismiss, which was denied. Following the presentation of
his defense, Tolbert renewed his motion. The motion was
again denied. The jury then deliberated, and on June 5, 2013,
returned verdicts of guilty of first degree murder, first degree
assault, and two counts of use of a deadly weapon to commit
a felony.
On August 23, 2013, Tolbert filed a motion for new trial
based upon newly discovered evidence. In his motion, Tolbert
alleged that Cayou had recanted his trial testimony; he included
with his motion Cayou’s affidavit to that effect.
In response, the State offered two affidavits. The first affi-
davit was from the admissions manager at the Douglas County
Correctional Center explaining the housing of Cayou, Tolbert,
and a third inmate. The affidavit explained that Cayou and this
inmate were housed in the same unit; that Tolbert was housed
in a separate unit; and that it was possible for prisoners to com-
municate between the two units.
The second affidavit was another affidavit from Cayou. In
this second affidavit, Cayou averred that he had signed the
earlier affidavit only after another inmate, who identified him-
self as Tolbert’s cousin, threatened Cayou that he would be
“‘jumped’” if he did not recant his testimony. Cayou averred
that he signed the first affidavit and then informed his counsel
of his action, including the reasons behind it. Cayou’s second
affidavit is at least partially corroborated by the affidavit from
the admissions manager. The district court denied Tolbert’s
motion for new trial. Tolbert appeals.

STATE v. TOLBERT 	737
Cite as 288 Neb. 732
ASSIGNMENTS OF ERROR
Tolbert assigns as error that (1) there was insufficient evi-
dence to support his convictions, (2) the sentences imposed
were excessive, and (3) the district court erred in denying his
motion for new trial.
STANDARD OF REVIEW
[1] In reviewing a sufficiency of the evidence claim, 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.
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.1
[2] Imposing a sentence within statutory limits is a matter
entrusted to the discretion of the trial court.2
[3] 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.3
ANALYSIS
SufficieNcy of evideNce
In his first assignment of error, Tolbert argues that the dis-
trict court erred in concluding there was sufficient evidence to
support his convictions. Tolbert contends that the testimonies
of Gamble and Cayou were inconsistent, both with each other
and with the testimony of the other witness to the shooting,
Anderson, so as to make their testimonies not believable.
Tolbert also argues that Gamble’s and Cayou’s levels of intoxi-
cation created reasonable doubt as to their ability to remember
and further alludes to the veracity of Gamble’s and Cayou’s
1 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
2 State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
3 State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).

738 	288 NEBRASKA REPORTS
testimonies due to the agreements each reached with the State
for a reduction in charges.
These arguments are without merit. As we noted above, the
principles of law are clear: 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.4 But this is exactly what Tolbert asks us to do.
Tolbert argues that the testimonies of Anderson, Gamble,
and Cayou were in conflict. However, this court does not
resolve such conflicts—a jury does. Tolbert argues that Gamble
and Cayou were so drunk as to be untrustworthy. But this
goes to the credibility of these witnesses, and this court does
not assess credibility. Nor does the fact that both Gamble and
Cayou had entered into agreements with the State involve a
determination made by this court. That also goes to credibility,
which is the province of the jury.
Both Gamble and Cayou testified that Tolbert was the
shooter. This testimony, which was corroborated by other evi-
dence, was sufficient to support Tolbert’s convictions. Tolbert’s
first assignment of error is without merit.
exceSSive SeNteNceS
Tolbert next assigns that the district court erred in imposing
upon him excessive sentences.
[4,5] The relevant principles of law are well known. Where
a sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in consider-
ing and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.5
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.6
4 See Filholm, supra note 1.
5 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
6 State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).

STATE v. TOLBERT 	739
Cite as 288 Neb. 732
[6] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime.7
First degree murder is a Class IA felony8 for which the only
allowable sentence is life imprisonment.9 First degree assault is
a Class II felony10 punishable by 1 to 50 years’ imprisonment.11
And use of a weapon to commit a felony is a Class IC felony
when that weapon is a firearm.12 The mandatory punishment
for a Class IC felony is 5 to 50 years’ imprisonment.13
Tolbert was sentenced to life imprisonment for first degree
murder; this was the only sentence available to the district
court and, as Tolbert seems to agree, was not an abuse of dis-
cretion. Rather, Tolbert argues that the other sentences of 40 to
50 years’ imprisonment for each remaining count, to be served
consecutively, are excessive, because such sentences are essen-
tially another life sentence for Tolbert, who was a young man
of 20 years of age when sentenced.
Tolbert’s sentences, while at the high end of the statu-
tory limits, are within those limits. We also note that under
§ 28-1205(3), Tolbert’s sentences for use of a deadly weapon
to commit a felony must be served consecutively to any other
sentence imposed. Nor do we find the sentences to be exces-
sive. Tolbert had a prior criminal history involving weapons.
During the testing conducted at his presentence investigation,
he scored as a high risk or very high risk in every category.
7 Id.
8 Neb. Rev. Stat. § 28-303 (Reissue 2008).
9 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
10 Neb. Rev. Stat. § 28-308 (Cum. Supp. 2012).
11 § 28-105.
12 Neb. Rev. Stat. § 28-1205(1) (Cum. Supp. 2012).
13 § 28-105.

740 	288 NEBRASKA REPORTS
Despite having three children, Tolbert has apparently never
held a job or graduated from high school. He denies being
in a gang, but acknowledges that many of his friends are in
gangs. Tolbert freely admits to drinking alcohol, but denies
using drugs.
The facts surrounding Tolbert’s convictions are chilling. He
was found guilty of one count of first degree murder and one
count of first degree assault, as well as two counts of use of a
deadly weapon to commit a felony. But Wilkinson could have
just as easily been killed as injured in this incident.
Wilkinson and Wiseman were each approximately 16 years
old. The group was shot at, and Wiseman killed, simply
because they were wearing red clothing.
And even before Tolbert and his associates targeted Wiseman
and his friends, Tolbert also attempted to shoot at two other
individuals. It was pure luck that the safety of the shotgun was
still on and that those people escaped unharmed.
We find nothing in this record to show that Tolbert has, at
any point, expressed remorse over these shootings or the fact
that a group of teenagers unrelated to any gang were shot at,
with one killed and another injured. The record shows that
the district court appropriately considered the relevant factors
when it sentenced Tolbert as it did. Those sentences were not
excessive, and Tolbert’s assignment of error is without merit.
MotioN for NeW trial
In his final assignment of error, Tolbert argues that the dis-
trict court erred in denying his motion for new trial. Tolbert’s
motion was filed more than 10 days after the entry of the jury’s
verdicts, but was nevertheless timely because it alleged that
a new trial was warranted on the basis of newly discovered
evidence,14 specifically, an affidavit from Cayou recanting his
trial testimony.
In addition to Cayou’s affidavit recanting his testimony, the
district court was also presented with evidence that Cayou was
threatened in order to obtain that recantation. In a second affi-
davit, Cayou averred that someone who identified himself as
14 See Neb. Rev. Stat. §§ 29-2101(5) and 29-2103(4) (Reissue 2008).

POTTER v. McCULLA 	741
Cite as 288 Neb. 741
Tolbert’s cousin approached him and threatened to have Cayou
“‘jumped’” unless Cayou said that Tolbert was not the shooter.
There was further evidence to show that the scenario as
explained by Cayou was possible, given the housing arrange-
ment at the Douglas County Correctional Center.
We review the denial of a motion for new trial for an abuse
of discretion. The district court did not abuse its discretion in
denying the motion for new trial in light of Cayou’s second
affidavit and explanation.
Tolbert’s third assignment of error is without merit.
CONCLUSION
The decision of the district court is affirmed.
affirMed.
barbara l. potter, appellee, v. patrick S. Mcculla
aNd hartford uNderWriterS iNSuraNce coMpaNy,
appelleeS, aNd tracy N. garcia, d.d.S., l.l.c.,
aNd firStcoMp iNSuraNce coMpaNy, appellaNtS.
851 N.W.2d 94
Filed August 1, 2014. 	No. S-13-944.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court review panel, a higher appellate
court reviews the findings of the trial judge who conducted the original hear-
ing; the findings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. Workers’ Compensation: Proof. To recover under the Nebraska Workers’
Compensation Act, a claimant must prove by a preponderance of the evidence
that an accident or occupational disease arising out of and occurring in the course
of employment caused an injury which resulted in disability compensable under
the act.
4. Workers’ Compensation: Expert Witnesses. Unless its nature and effect
are plainly apparent, an injury is a subjective condition requiring an expert