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Cite as 304 Neb. 829

State of Nebraska, appellee, v. 

Trevor S. Case, appellant.

___ N.W.2d ___

Filed January 17, 2020. No. S-18-1197.

1. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

2. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and 

their rulings thereon will not be reversed in the absence of an abuse 

of discretion.

3. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: 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; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

5. Self-Defense: Jury Instructions. A trial court is required to give a selfdefense instruction where there is any evidence in support of a legally 

cognizable theory of self-defense.

6. Self-Defense: Jury Instructions: Evidence. It is only when the evidence does not support a legally cognizable claim of self-defense or the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/28/2020 08:06 AM CST
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evidence is so lacking in probative value, so as to constitute a failure 

of proof, that a trial court may properly refuse to instruct a jury on a 

defendant’s theory of self-defense.

7. Self-Defense. To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of 

using force and the force used in defense must be immediately necessary 

and justified under the circumstances.

8. ____. If a defendant has unjustifiably placed himself or herself in harm’s 

way, a court may properly find that such facts do not support a lawful 

claim of self-defense.

9. Criminal Law: Pretrial Procedure. Discovery in a criminal case is 

generally controlled by either a statute or a court rule.

10. Motions for Continuance: Evidence: Waiver. If a continuance would 

have been a sufficient remedy for a belated disclosure in violation of 

Neb. Rev. Stat. § 29-1912 (Reissue 2016), a defendant who fails to 

request a continuance waives any rights he or she may have had pursuant to § 29-1912.

11. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction 

is based, 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: Susan 

I. Strong, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

Matthew Meyerle for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Trevor S. Case appeals his conviction and sentence in the 

district court for Lancaster County for assault by a confined 

person. A jury found Case guilty, and the court thereafter 
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sentenced him to 365 days in jail followed by postrelease 

supervision for 12 months. Case claims on appeal that the 

court erred when it refused his proposed self-defense instruction and when it admitted a recording of a telephone call he 

made from jail. He also claims there was not sufficient evidence to support his conviction. We affirm Case’s conviction 

and sentence.

STATEMENT OF FACTS

On February 16, 2018, Case, who was confined in the 

Lancaster County jail, got into an altercation with Kenneth 

Burley, who was also confined in the jail and who had been 

a cellmate with Case. As a result of the altercation, the State 

charged Case with a Class IIIA felony, assault by a confined 

person, in violation of Neb. Rev. Stat. § 28-932 (Reissue 

2016).

On the first day of trial, the court considered certain pretrial 

motions. Among those was Case’s objection to admission of 

a recording of a telephone call he had made shortly after the 

altercation and in which he made certain statements regarding the event. Case objected to admission of the recording 

because the State had provided the recording to Case only the 

day before trial, which he noted was well beyond the time the 

State was required to provide evidence pursuant to the court’s 

discovery order. Case asserted that the recording fit within the 

scope of the discovery statute, Neb. Rev. Stat. § 29-1912(1)(f) 

(Reissue 2016), which requires production of “[d]ocuments, 

papers, books, accounts, letters, photographs, objects, or other 

tangible things of whatsoever kind or nature which could be 

used as evidence by the prosecuting authority.” The State 

contended that the recording was not subject to § 29-1912. 

The State further contended that it had become aware of the 

existence of the recording only the night before it provided it 

to Case and that because it had provided the evidence to Case, 

it did not think that “the remedy here is that it be excluded” 

but that the defense, if it thought it needed additional time, 
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“could ask for a continuance.” After hearing the arguments of 

the parties, the court overruled Case’s objection. Case did not 

thereafter move for a continuance.

The first witness for the State was William McGlothlin, 

who was a security manager for the Lancaster County jail. He 

testified regarding his duties, which included keeping records 

of persons confined in the jail, maintaining surveillance videos 

recorded in the jail, and maintaining recordings of telephone 

calls made from the jail by inmates. Based on knowledge 

obtained in performing these duties, McGlothlin testified that 

both Case and Burley were inmates at the jail on February 

16, 2018, and that on that date, they were both in the same 

housing unit, which contained 32 cells. McGlothlin provided 

foundation for admission of a disc containing surveillance 

video recordings that showed the altercation between Case and 

Burley; the disc contained video from two cameras showing 

the incident from two different angles. Case did not object to 

admission of the video recordings.

McGlothlin also provided foundation for admission of the 

recording of a telephone call made from the jail on February 

19, 2018. McGlothlin testified that the call was made using a 

personal identification number that was specific to Case. Case 

objected to admission of the recording of the telephone call on 

the basis of foundation. Case maintained that it had not been 

established that the voice on the call was his. The court overruled the objection. Case also renewed the objection he had 

made prior to trial and continues to assert on appeal based 

on the State’s failure to comply with the discovery order. The 

court also overruled that objection and admitted the recording 

of the telephone call into evidence. Although both the video 

recordings and the telephone recording were admitted into evidence during McGlothlin’s testimony, neither was published to 

the jury at that time.

On cross-examination by Case, McGlothlin testified that 

Case and Burley had been cellmates between December 19 

and 31, 2017. McGlothlin testified generally regarding reasons 
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inmates might be moved from one cell to another, but he did 

not testify regarding reasons Case and Burley were no longer 

assigned to the same cell. McGlothlin also testified that Case 

had had no significant disciplinary problems prior to the 

February 16, 2018, incident.

The State’s next witness was Zachary Yost, a correctional 

officer who was working at the Lancaster County jail on 

February 16, 2018. On that date, he was assigned to the housing unit in which both Case and Burley were housed. Yost 

testified that he was at the officer station in the unit when 

he heard a noise, looked up, and witnessed a physical altercation between Case and Burley. At the time he looked up, 

both were “throwing closed-fist punches.” Yost got up from 

his desk, called for assistance, and made his way toward the 

altercation, giving loud verbal commands for the two to stop 

fighting and for the other inmates to return to their cells. Yost 

testified that when he first gave the commands, both Case 

and Burley remained engaged in a physical altercation. When 

he approached the two, Yost “used [his] right arm to deflect 

. . . Case from . . . Burley.” Burley had stopped throwing 

punches, but Case continued. Case thereafter “stopped throwing punches, but . . . still continued to posture and advance 

on . . . Burley.” At that time, Burley “had put his hands down 

and had turned” away. When additional staff arrived, Yost 

placed Burley in restraints while someone else placed Case in 

restraints. Both were escorted out of the housing unit and Yost 

did not have further interaction with either Case or Burley that 

day. Yost further testified that he had been working the 2 or 3 

days prior to the incident and that in the days leading up to the 

altercation, Case had not told him that he was having any sort 

of difficulties with Burley.

The surveillance video that had been admitted into evidence 

during McGlothlin’s testimony was played for the jury during 

Yost’s testimony. Yost testified that he had reviewed the video 

and that it accurately depicted the altercation between Case and 

Burley. During the playing of the video, counsel for the State 
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occasionally paused the video to ask Yost questions regarding 

what was depicted. Yost noted that the video included footage 

from two cameras that showed different angles on the altercation and that one of the two did not show the beginning of 

the altercation.

Yost testified that it was common for inmates to walk in 

circles around the housing unit as some inmates were depicted 

doing in the video. Yost identified Burley as a person in the 

video who was walking counterclockwise with another unidentified inmate. At a later point in the video, Yost identified Case 

as the person who walked out of one of the cells on the outer 

edges of the area depicted; Yost testified that Case was coming 

out of his own cell. The video shows that Case came out of 

his cell and proceeded in a clockwise direction directly toward 

Burley. Yost testified that in order to be let out of the cell, Case 

would have needed to request an officer at the control kiosk to 

allow him to do so. Yost further identified Case and Burley as 

the persons in the video who began fighting and himself as the 

person who came to intervene.

The recording of the telephone call was also played for the 

jury during Yost’s testimony. Prior to the recording’s being 

played, Yost testified that he had listened to the recording and 

that he was familiar with Case’s voice. Yost testified that the 

voice of the person placing the call was Case’s and that one of 

the voices heard during the call was Case’s. In the recording, 

the person identified by Yost as Case appeared to be discussing 

the altercation with Burley with an unidentified person. At one 

point, the other person asked, “Did he attack you or did you 

go for him?” and the person identified as Case responded, “I 

went for him.”

The State’s next witness was Burley. He testified that on 

February 16, 2018, he was an inmate in the Lancaster County 

jail. He was “doing laps” and talking with another inmate when 

Case came up to them and said, “‘Stop hitting my door.’” 

Burley denied having hit Case’s door. According to Burley, 

after Case made the accusation, Burley “proceeded to walk off ” 
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and Case “start[ed] viciously attacking [him] . . . kept coming towards [him], consistently, persistently.” Burley testified 

that he backed up from Case and told him he did not want to 

fight. When asked who threw the first punch in the altercation, 

Burley testified, “He attacked me viciously, striking me in the 

face, as well as throwing me to the ground. People were trying 

to break it up, and he’s still coming towards me . . . .”

Burley also testified regarding injuries he received in the 

altercation. The injuries included swelling in his face, the back 

of his head, and near his ear, as well as his ankle. Burley further testified that he and Case had previously been cellmates 

for “several days” and that Burley had been moved to a different cell. Case was serving as an inmate porter, and Burley 

testified that the reason for the move was because he and Case 

kept different hours. Burley explained that he needed to be in 

a bottom bunk because of a disability and that therefore, the 

move would allow him to get better sleep. Burley testified that 

prior to the altercation, he had not had any issues with Case 

and had not bullied or threatened Case.

The State played the surveillance video during Burley’s 

testimony and asked him questions about what was depicted. 

Burley identified Case as a person depicted in the video and 

stated that Case could be seen coming “[s]traight out the 

cell . . . coming straight towards me.” Burley testified that 

at the point when the altercation began, he “tried to take a 

step away from [Case].” When counsel for the State noted 

that it appeared in the video that Burley “didn’t take a step 

backwards” but instead “took a step forward,” Burley testified 

that he was “trying to walk away, away from him, get away 

from this gentleman.” Burley testified that after the initial 

punches, he was “bouncing back, still constantly bouncing 

back, and [Case was] still persistently coming towards [him].” 

Burley noted that at one point, he was “on the ground” with 

Case “on top of [him].” He testified that he ended up on 

the ground because of the “force of [Case’s] punches and 

his anger, his rage.” When asked about some movements he 
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made that were depicted in the video as occurring before 

the altercation began, Burley testified that he was showing the person with whom he was walking “how a previous fight [there] happened” but that he was not involved in 

that previous fight.

The final witness in the State’s case in chief was John 

Winter, a Lincoln police officer who investigated the altercation between Case and Burley. As part of his investigation, 

Winter had watched the surveillance video and had interviewed both Case and Burley. Winter testified that photographs 

that had been admitted into evidence accurately depicted injuries to both Case and Burley.

Winter testified that when he interviewed Case, he had 

advised Case of his Miranda rights and Case had waived his 

right to counsel before talking to Winter. Winter testified that 

Case said that he and Burley had previously been cellmates and 

that he “had been having issues with . . . Burley, in the sense 

that . . . Burley was making statements . . . that were untrue 

about him.” Case further described to Winter that Burley had 

been “coming by his cell door and lightly tapping on the cell 

door, just loud enough to cause [Case] annoyance, but not loud 

enough to draw any more attention.” Case told Winter that 

Burley was “sort of a bully” and that he had told correctional 

staff about issues he had had with Burley. Winter testified that 

Case said that because staff had “failed to take any action” to 

fix his issues with Burley, on the day of the altercation Case 

determined “he was going to go handle the situation himself 

and that’s why he ended up speaking with . . . Burley.” After 

making that statement, Case declined to elaborate in more 

detail regarding the altercation.

After the State rested its case, Case made a motion to dismiss. The court overruled the motion to dismiss.

Case chose to testify in his own defense. He testified that he 

and Burley had been cellmates for “two to three weeks” and 

that in that time, a relationship had been established in which 

Burley was “demanding” of Case. Case testified that Burley 
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had let him know that Burley “was a gang member” and had a 

certain “ranking in his gang.”

While in the Lancaster County jail, Case had been selected 

to work as a porter with maintenance and cleaning duties. 

He testified that the position gave him greater access than 

other inmates to items such as “[c]leaning supplies, foods, 

[and] laundry” and that this access sometimes prompted other 

inmates to ask for favors. Case testified that Burley would 

try to get Case to get him items but that Case would resist 

because to do so would be a rule violation and he valued his 

position as a porter. Case testified that his position as a porter 

required him to work at night until 2 a.m. and that his hours 

became an issue with Burley because they conflicted with his 

sleep schedule. Case stated that because of his hours, Burley 

“felt . . . that [Case] owed him things, and [that Case] needed 

to . . . give the demanded things that he wanted.” Case testified that Burley’s demands made him feel “threatened” and 

“fearful for [his] physical safety.” Case testified that one of 

the ways Burley intimidated him was to talk about how he 

used to be a boxer and to demonstrate his skills by shadow 

boxing. Case testified that he had made certain corrections 

officers, including Jordan Malcolm, aware of his problems 

with Burley but that he had never filed a formal grievance 

or complaint because he feared repercussions from Burley. 

Case testified that Burley was eventually moved to a different cell because of an incident in which Burley made threats 

to Case.

Case testified that after Burley was moved to a different cell in the same housing unit, Burley continued to make 

subtle threats and to bully him. Case testified that several 

days prior to the altercation with Burley, he had seen Burley 

being physically threatening to another inmate. Case testified 

that on February 16, 2018, he had been getting the sense that 

Burley was going to follow through on threats he had been 

making toward Case. That afternoon, Case was trying to sleep 

in his cell and heard someone walking by his cell, “trying to 
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— to get [his] attention or to disrupt or to annoy [his] sleep.” 

Looking out of his cell, he saw Burley walking with another 

inmate, and, thinking it was Burley trying to get his attention 

or annoy him, he came out of his cell and “walked over to him, 

with no demeanor of intent of doing anything, other than just 

asking.” Case asked why Burley was tapping on his door, and 

Burley “played coy.” Case then got the sense that Burley was 

going to hit him, based on Burley’s “look, his body language.” 

Case testified that Burley then initiated physical contact with 

a motion that Case described as “a jab . . . tuck his shoulder 

underneath, walk into [Case], step towards [Case].” Case was 

“startled,” and he pushed Burley. This resulted in a series of 

punches between the two.

Case testified that his actions, including “taking [Burley] 

to the ground,” were because he “had no other choice but 

to be . . . defenseful [sic] in that manner, without hitting or 

closed fisting.” Case testified that he took his shirt off during 

the altercation because Burley was using the shirt to pull him 

down. He also testified that he did not immediately respond to 

Yost’s commands to stop fighting because “the moment was 

very heated” and he “did not trust Burley in any type of situation.” Case testified that “Yost had no control over that situation” and that he thought that because he did not feel safe, he 

needed “to stand until an officer either puts cuffs on [Burley] 

or [himself].”

Case testified regarding the recording of the telephone call 

that had been admitted into evidence and played during the 

State’s case. He testified that he had had several previous 

conversations with his mother to let her know about the situation that was going on with Burley. He admitted that when 

she asked, “‘Did he attack you or did you go for him,’” he 

replied, “‘I went for him.’” But he testified that this was not 

a reference to his physically attacking Burley, but “more or 

less standing up” and “be[ing] forward with my approach 

with him.” Based on his communications with his mother, he 

believed that she understood it in the same way. And contrary 
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to Winter’s testimony, Case denied having said that he had 

decided to handle the situation with Burley himself.

Later, on redirect, defense counsel played the surveillance 

video and asked Case questions about what was depicted. 

Counsel referred to a point in the video where Burley is seen 

making motions that counsel described as “shadow boxing.” 

Case testified that he saw those actions from his cell and that it 

looked to him like “a threat, maybe a pre-warning.” Following 

his testimony, Case rested his defense without presenting further testimony or other evidence.

In rebuttal, the State called Malcolm as a witness. Malcolm 

testified that he was a correctional officer at the Lancaster 

County jail and that he had known Case as an inmate during the period from December 2017 through February 2018. 

Malcolm supervised Case in his work as a porter, and as a 

result, he likely had more interaction with Case than with 

other inmates. Malcolm testified that he would sometimes 

have conversations with Case when no other inmates were 

around, but he testified that Case had never discussed any 

problems he was having with Burley and had never confided that Burley was targeting him for assault. Malcolm 

testified that he had never witnessed Burley bullying Case 

and that if he had witnessed such behavior or if Case had 

reported such behavior, he would have documented it in 

a report according to procedure rather than attempting to 

handle the situation himself. Malcolm further testified that if 

Case had reported being threatened by Burley, he could have 

been placed in protective custody. On cross-examination, 

Malcolm testified, inter alia, that inmates in protective custody were subject to more restrictions and more time in their 

cells than other inmates. After the State rested its rebuttal, 

Case renewed his motion to dismiss and the court overruled 

the motion.

At the jury instruction conference, the main issue of discussion was Case’s proposed instruction on self-defense. Case 

proposed the following instruction:
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Case acted in self-defense if:

1. . . . Burley used or threatened force against . . . 

Case; and

2. Under the circumstances as they existed at the 

time, . . . Case reasonably believed that the force he used 

against . . . Burley was immediately necessary to protect 

himself against any such force used or threatened by 

. . . Burley.

The fact that . . . Case [may] have been wrong in 

estimating the danger does not matter so long as there 

was reasonable basis for he believed [sic] and he acted 

reasonably in response to those beliefs.

The State opposed Case’s proposed instruction and argued 

that the evidence showed that Case had unjustifiably placed 

himself in harm’s way. The State noted that Case’s own testimony indicated that when he perceived a threat form Burley, 

“he [left] his cell and immediately [went] to talk with . . . 

Burley about it. And then, in all less than a minute, this happens.” The State argued that Case “could have easily stayed in 

his cell or he could have easily asked the correctional officer 

for assistance.” The State further argued that the alleged tapping on Case’s cell door was “probably annoying” but “not a 

threat of force” that would “justify him going on the offensive.” 

The State concluded that Case’s use of force was not “immediately necessary and justifiable under the circumstances.”

Case argued that precedent required the court to give a 

self-defense instruction where there was any evidence in support of a legally cognizable theory of self-defense. He argued 

that there was evidence that he had gone into a dayroom, 

where he had a right to be, with the intention of speaking 

with Burley and not with the intention of starting a physical 

fight. He further argued that there was evidence that Burley 

made a move toward Case, which action gave rise to a claim 

of self-defense.

The court refused Case’s proposed instruction on selfdefense. The court stated, “I think the evidence shows that . . . 
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Case left his cell, went directly to confront . . . Burley, and I 

think no one’s testified that . . . Burley made the initial contact. 

It was . . . Case that made the initial contact. It was . . . Case 

that started the confrontation.”

After the case was submitted to the jury. The jury returned 

a verdict finding Case guilty of assault by a confined person. 

The court accepted the verdict and thereafter sentenced Case 

to 365 days in jail followed by postrelease supervision for 

12 months.

Case appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

Case claims that the district court erred when it (1) refused 

his proposed self-defense instruction and (2) admitted the 

recording of the telephone call. He also claims there was not 

sufficient evidence to support his conviction.

STANDARDS OF REVIEW

[1] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision. State v. Bigelow, 303 Neb. 729, 931 N.W.2d 

842 (2019).

[2] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon 

will not be reversed in the absence of an abuse of discretion. 

State v. Hatfield, ante p. 66, 933 N.W.2d 78 (2019).

[3] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether 

the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, 

the standard is the same: 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; 

such matters are for the finder of fact, and a conviction will 

be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably 
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to the State, is sufficient to support the conviction. State v. 

Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).

ANALYSIS

Self-Defense Instruction.

Case first claims that the district court erred when it refused 

his proposed self-defense instruction. In State v. Graham, 234 

Neb. 275, 450 N.W.2d 673 (1990), we stated that only where 

the jury could reasonably find that the defendant’s use of 

force was justified should the trial court instruct the jury on 

self-defense. We determine that the evidence did not support 

a self-defense instruction and that therefore, the court did not 

commit reversible error when it refused the instruction.

[4] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. State v. Bigelow, supra. 

As discussed below, we determine that Case’s tendered instruction on self-defense was not warranted by the evidence and that 

therefore, we need not consider whether the instruction was a 

correct statement of the law or whether Case was prejudiced by 

the court’s refusal to give the instruction.

[5] We have held that a trial court is required to give a selfdefense instruction where there is any evidence in support of a 

legally cognizable theory of self-defense. State v. Kinser, 252 

Neb. 600, 567 N.W.2d 287 (1997). Case cites this proposition and emphasizes that because of the “any evidence” language, the court was required to give his proposed self-defense 

instruction. In support of his argument, Case points to evidence 

to the effect that Burley had threatened him in the past; that 

in the days leading up to the incident, the threats had become 

more immediate; and that before Case threw his first punch, 

Burley had made a move toward Case that Case characterized 

as a “jab.”
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[6] Although the evidence noted by Case could be favorable toward proving a theory of self-defense, the proposition 

relied on by Case must be read in its entirety. It is not enough 

to merely show “any evidence” of self-defense to support an 

instruction thereon. Instead, the defendant must show “any 

evidence in support of a legally cognizable theory of selfdefense.” Id. at 607, 567 N.W.2d at 292. As we further stated 

in Kinser:

It is only when the evidence does not support a legally 

cognizable claim of self-defense or the evidence is so 

lacking in probative value, so as to constitute a failure of 

proof, that a trial court may properly refuse to instruct a 

jury on a defendant’s theory of self-defense.

252 Neb. at 606-07, 567 N.W.2d at 292.

Although the evidence noted by Case could be part of a 

legally cognizable case of self-defense, the court needed to 

determine without deciding factual issues whether the evidence 

would support self-defense under Nebraska law. We therefore 

review aspects of self-defense under Nebraska law that are relevant to assessing the evidence in this case.

[7] Self-defense is a statutorily defined affirmative defense 

in Nebraska. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 

(2012). Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides 

in relevant part that “the use of force upon or toward another 

person is justifiable when the actor believes that such force 

is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person 

on the present occasion.” We have interpreted § 28-1409 to 

mean that to successfully assert the claim of self-defense, a 

defendant must have a reasonable and good faith belief in the 

necessity of using force and the force used in defense must be 

immediately necessary and justified under the circumstances.

State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State 

v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998); State v. 

Kinser, supra; State v. Graham, 201 Neb. 659, 271 N.W.2d 

456 (1978).
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[8] Extrapolating from the requirement that the force used 

must be “justified under the circumstances,” in a case involving a conviction for assault by a confined person, we stated, 

“If a defendant has unjustifiably placed himself or herself in 

harm’s way, a court may properly find that such facts do not 

support a lawful claim of self-defense.” State v. Urbano, 256 

Neb. at 201, 589 N.W.2d at 151. In Marshall, this court reasoned that the defendant voluntarily put himself in a position 

of danger by going outside of his home to confront two men 

when there was no evidence that anything prevented him from 

remaining safely in his home and thereby avoiding the occasion to use force.

Applying the law set forth above to the evidence in this 

case, we determine that the evidence did not support a legally 

cognizable theory of self-defense. In doing so, we apply the 

law as set forth in Urbano and Marshall. The district court 

rejected Case’s self-defense instruction because Case “made 

the initial contact.” As the undisputed facts recited earlier 

in our opinion show, Case left his cell and walked directly 

up to Burley. The record is clear that there was no evidence 

that Case was prevented from remaining safely inside his 

cell. Instead, he unjustifiably placed himself in harm’s way, 

and such facts do not support a legally cognizable theory of 

self-defense.

Given the foregoing, we determine that the evidence did not 

support a self-defense instruction, and we conclude that the 

district court did not err when it refused the instruction proposed by Case.

Recording of Telephone Call.

Case next claims that the district court erred when it admitted the recording of the telephone call. Although at trial Case 

objected to the recording based on both foundation and the 

alleged discovery violation, his argument on appeal is limited to the discovery violation. We conclude that because 

Case failed to move for a continuance after the evidence was 
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provided by the State, Case has waived his right to relief from 

the State’s belated production of the recording.

[9,10] Discovery in a criminal case is generally controlled 

by either a statute or a court rule. State v. Hatfield, ante p. 

66, 933 N.W.2d 78 (2019). Nebraska’s principal discovery 

statute, § 29-1912, sets forth a list of evidence that may be 

subject to discovery at the discretion of the trial court. The 

list includes a defendant’s prior criminal record, the names 

and addresses of witnesses on whose evidence the charge is 

based, and documents, papers, books, accounts, photographs, 

objects, or other tangible things of whatsoever kind or nature 

which could be used as evidence by the prosecuting authority. 

Neb. Rev. Stat. § 29-1919 (Reissue 2016) sets forth various 

remedies the court may employ when there is a claimed violation of a discovery order: The court may (1) order such party 

to permit discovery or inspection of materials not previously 

disclosed, (2) grant a continuance, (3) prohibit a party from 

calling a witness not disclosed or introduce evidence not disclosed, or (4) enter another order as it deems just under the 

circumstance. We have held that if a continuance would have 

been a sufficient remedy for a belated disclosure in violation 

of § 29-1912, a defendant who fails to request a continuance waives any rights he or she may have had pursuant to 

§ 29-1912. State v. Hatfield, supra.

The record shows that immediately prior to the start of trial, 

the court considered Case’s objection to admission of the telephone recording on the basis that the State had provided the evidence to Case only the day before trial, which was well beyond 

the time the State was required to provide evidence pursuant to 

the court’s discovery order. There was some dispute between 

Case and the State as to whether the recording of the telephone 

call was evidence subject to discovery under § 29-1912 and 

the court’s discovery order. However, the State argued that 

because it had provided the evidence to Case, even if such late 

disclosure violated the discovery order, the proper remedy was 

not to exclude the evidence but to allow a continuance if Case 
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requested one. The court overruled Case’s objection, and Case 

did not thereafter request a continuance.

While a court may order that a party not be permitted to 

offer evidence at trial which it failed to disclose, this court has 

stated a preference for a continuance in such situations. State 

v. Hatfield, supra. In the circumstances of this case, a continuance would have been a sufficient remedy if Case needed 

additional time to prepare a defense to the newly disclosed 

evidence. However, Case failed to request a continuance after 

the court overruled his objection, and therefore, he waived 

any right he may have had pursuant to § 29-1912. See State v. 

Hatfield, supra. We therefore conclude that the district court 

did not err when it admitted the recording of the telephone call 

into evidence.

Sufficient Evidence to Support Conviction.

Case finally claims that the evidence was not sufficient to 

support his conviction. We conclude that the evidence was 

sufficient.

[11] When a criminal defendant challenges the sufficiency 

of the evidence upon which a conviction is based, 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. Montoya, ante p. 

96, 933 N.W.2d 558 (2019).

Case was charged with assault by a confined person as a 

Class IIIA felony in violation of § 28-932(1), which provides in 

relevant part: “Any person (a) . . . who is legally confined in a 

jail or an adult correctional or penal institution . . . and (b) who 

intentionally, knowingly, or recklessly causes bodily injury to 

another person shall be guilty of a Class IIIA felony . . . .” 

Case does not dispute that the evidence established that at the 

time of the altercation with Burley, he was legally confined in 

the Lancaster County jail. Instead, he argues that the evidence 

was not sufficient to establish that he intentionally, knowingly, 
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or recklessly caused bodily injury to Burley. Much of his 

argument in this regard is based on his theory that he acted in 

self-defense. However, as discussed above, the evidence did 

not support a legally cognizable theory of self-defense, and 

therefore, such argument does not establish that the evidence 

was not sufficient to support Case’s conviction.

There was sufficient evidence, including the video recordings, testimony by witnesses including Burley, and Case’s 

statement in the recording of the telephone call that he “went 

for” Burley, as well as his own testimony, to support a finding that Case physically assaulted Burley. There was also evidence that Burley suffered bodily injury and that such injury 

had been caused by Case’s physical assault. Case argues that 

Burley’s testimony in particular is not credible; however, we 

do not pass on the credibility of witnesses on appeal, State 

v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019), and 

Burley’s testimony, if believed, as well as other evidence supports the conviction. Case directs us to his testimony that his 

intent when he approached Burley was not to assault him but 

merely to talk to him. Case asserts that this testimony establishes that he did not intentionally, knowingly, or recklessly 

cause bodily injury to Burley. Again, we do not review the 

jury’s credibility assessments of Case’s testimony regarding 

his intent. We conclude that there was sufficient evidence to 

support Case’s conviction.

CONCLUSION

We conclude that the district court did not err when it 

refused Case’s proposed self-defense instruction; nor did it err 

when it allowed the recording of the telephone call into evidence. We further conclude that there was sufficient evidence 

to support Case’s conviction. We therefore affirm Case’s conviction and sentence.

Affirmed.