State v. Farr

493 N.W.2d 638, 1 Neb. Ct. App. 272, 1992 Neb. App. LEXIS 231
CourtNebraska Court of Appeals
DecidedOctober 6, 1992
DocketNo. A-91-418
StatusPublished

This text of 493 N.W.2d 638 (State v. Farr) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Farr, 493 N.W.2d 638, 1 Neb. Ct. App. 272, 1992 Neb. App. LEXIS 231 (Neb. Ct. App. 1992).

Opinion

Irwin, Judge.

This is a criminal case in which Brenda J. Farr, appellant, was convicted by a jury in the county court for Dawson County, Nebraska, of third degree assault/fight by mutual consent, see Neb. Rev. Stat. § 28-310 (Reissue 1989). After a presentence investigation was completed, appellant was sentenced to 5 days [273]*273in jail and was ordered to pay all court costs. An appeal to the district court for Dawson County resulted in the conviction and sentence being affirmed. Appellant has now perfected this appeal to the Nebraska Court of Appeals.

Unconvinced by the jury’s verdict, appellant assigns as her first error that there was insufficient evidence to prove beyond a reasonable doubt that she committed the crime charged. She also assigns as error evidentiary rulings by the trial court regarding certain testimony and the sentence imposed by the court. We affirm.

With the proliferation of the automobile has come an increase in rude and all too often aggressive behavior by drivers of motor vehicles toward the drivers of other vehicles. This case is an example of such behavior that is so easily avoidable by exercising a modicum of restraint, care, and patience.

FACTUAL BACKGROUND

Between 8:30 and 9 p.m. on May 27, 1990, Cody Flint was returning home to Overton, Nebraska, on Interstate 80. He had been in Lexington, Nebraska, earlier in the day at the Dawson County Raceway.

While traveling in the passing lane, Flint glanced in his rearview mirror and noticed a car (driven by appellant) approaching from behind at a high rate of speed. Flint signaled and moved into the right-hand lane to allow the car behind him to pass. He testified that after the vehicle passed him, it cut in front of him, making it necessary for him to brake. Flint continued to reduce his speed to increase the distance between himself and the vehicle which had passed him.

He then resumed traveling at 65 miles per hour and caught up with appellant’s vehicle. Since appellant’s vehicle was then moving somewhat slowly compared to Flint’s, he attempted to pass appellant’s car, but was cut off by appellant moving into the passing lane and causing Flint to brake suddenly. Flint slowed down and so did appellant. Flint attempted to pass again and was successful this time. After he passed appellant’s vehicle, she began flashing her high-beam lights on and off. She proceeded to pass him and then moved into his lane, causing him to quickly brake to prevent a rear end collision. This [274]*274scenario was repeated one more time, with Flint catching up to appellant’s car, passing it, and then being passed by appellant, who then cut into Flint’s lane and this time forced him to veer off the traveled portion of the Interstate to avoid a collision.

Flint exited at the Overton off ramp. Appellant had already exited at this ramp and had stopped her vehicle at the stop sign at the end of the ramp. Despite there being other cars on the ramp between appellant and Flint, she walked back to Flint’s car and began calling him names. Appellant had her two sons and a friend of the family in her vehicle while all this was going on.

Flint, exercising reasonable judgment, at least at this point, stayed in his vehicle and drove around appellant’s car, as the other drivers had done. He proceeded to a nearby truckstop and called the Nebraska State Patrol to report this entire incident. He was informed that he should go home and that a trooper would meet him there to take a report.

While returning to his car in the truckstop parking lot, Flint was approached by four men. He testified that he was grabbed by one of the men, but struggled free, having his shirt ripped in the process. After managing to get into his car, one of its taillights was smashed and the trunk lid was dented by these individuals. During his testimony, Flint stated that he assumed one of the four individuals may have been appellant’s husband. Defense counsel objected to this latter remark on relevancy grounds, and the judge sustained the objection “on the assumption,” but overruled it as to relevancy. Defense counsel objected to other portions of this particular testimony on the grounds of relevancy, but the objections were overruled by the court. The witness was cautioned by the court to testify concerning only facts, not assumptions. Defense counsel was also cautioned not to persist in objecting to this line of testimony, based on relevance. Flint continued with his testimony and detailed that he then drove directly home and waited for his parents’ return and the trooper’s arrival.

After his parents returned home, about 45 minutes later, he and his father, Charles Flint, went outside to examine the damage to the vehicle. While doing this, Cody Flint observed appellant driving by his house. Regrettably, Cody and Charles [275]*275Flint took the elder Flint’s pickup and began to follow appellant’s vehicle. Charles Flint eventually pulled around appellant’s car and cut her off, stopping his vehicle in front of hers. Cody Flint exited the pickup and approached the passenger side of appellant’s vehicle, where her son Raymond Farr was seated. The younger Flint testified that Raymond Farr kicked at him through the car window, succeeding only in breaking the window. Raymond Farr then exited the vehicle, and a struggle began between Raymond Farr and Cody Flint.

Next, the parents, Charles Flint and appellant, got into the act, exercising no better judgment than children, their own children actually. Appellant began shoving Charles Flint. At about this same time, Raymond Farr retrieved a tire iron from his mother’s car while fighting with Cody Flint. Then, both Charles Flint and appellant approached Raymond Farr and Cody Flint and began struggling over the tire iron, with appellant swearing at Charles Flint all the while. Appellant eventually gained control of the tire iron and began swinging it at Charles Flint. He deflected the blows from the weapon with his right arm, receiving cuts in doing so. The elder Flint then grabbed the tire iron from appellant and threw it in the back of his truck. The two boys stopped fighting, and both Flints drove away from the scene. During trial, Charles Flint testified that although he did not intend to start a fight, he admitted that the fight probably would not have happened if he had not followed and stopped appellant’s vehicle. The same was not true of Cody Flint and Raymond Farr. They were ready to fight when the Farr vehicle was cut off.

The Overton Police Department and the Dawson County sheriff’s office were eventually dispatched to respond to this incident. Deputy Sheriff Nancy Vandenberg testified that she had tried to discuss what had happened with appellant, but was generally unsuccessful because appellant appeared to be intoxicated, refused to listen to the deputy, interrupted her, and refused to “calm down.”

This same deputy interviewed the elder Flint, the victim herein, that same night. She discussed the incident with him and noted that he did not appear intoxicated, that he cooperated with the deputy, and that he allowed her to photograph the [276]*276injuries to his arm.

Appellant’s witnesses painted the picture quite differently, asserting it was Cody Flint who was driving erratically on the Interstate that night.

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Bluebook (online)
493 N.W.2d 638, 1 Neb. Ct. App. 272, 1992 Neb. App. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-farr-nebctapp-1992.