Background
Marquez A. Tolan was charged after incidents at Katherine Geardino’s residence in October and November 2024. Although Geardino had obtained a protection order against Tolan, the two remained in a relationship and lived together intermittently. Geardino testified that during an October 31 argument, Tolan tackled and pinned her, briefly grabbed her neck, and made breathing difficult. An officer observed blood on her shirt and injuries to her lip and neck.
Evidence also placed Tolan at Geardino’s residence on October 31, November 7, and November 13 despite the protection order. After his November 13 arrest, Tolan received Miranda warnings and told an officer that he had gone to the residence on November 7 after Geardino called asking for cigarettes. A jury acquitted him of assault by strangulation or suffocation but convicted him of third-degree domestic assault and three protection-order violations. After finding each conviction was a subsequent offense, the district court imposed consecutive prison terms totaling nine years, plus 18 months of post-release supervision.
The Court’s Holding
The Nebraska Court of Appeals affirmed. It declined to review Tolan’s challenge to his Miranda waiver because he did not object at trial when the officer’s body-camera footage and Tolan’s statements were admitted, and his counsel elicited testimony about one of those statements. The issue therefore was not preserved for appellate review.
The court held that sufficient evidence supported the convictions. Geardino’s testimony, her documented injuries, surveillance footage, witness identifications, and other testimony permitted a rational jury to find that Tolan intentionally and knowingly injured an intimate partner and knowingly violated the protection order on the disputed dates. The court also found no abuse of discretion in the within-guidelines, consecutive sentences, citing Tolan’s criminal history, unsuccessful prior supervision, assessed risk of reoffending, and pattern of abuse.
The court rejected Tolan’s claim that counsel should have requested a self-defense instruction because his defense was that he was not present and did not commit the assault—a theory incompatible with self-defense under the circumstances. His separate ineffective-assistance allegation concerning failure to impeach inconsistent testimony was not preserved because he did not identify the witnesses or statements with sufficient particularity.
Key Takeaways
- A defendant must renew an objection at trial to preserve appellate review of a pretrial ruling admitting statements following a Miranda or voluntariness hearing.
- Victim testimony, injury evidence, surveillance footage, and identifications can collectively support domestic-assault and protection-order convictions even when video images do not clearly show facial features.
- Counsel was not ineffective for omitting a self-defense instruction that conflicted with the defense theory that the defendant was absent and did not commit the offense.
Why It Matters
The decision underscores Nebraska’s preservation rules for custodial-statement challenges and the deference appellate courts give juries when reviewing evidentiary sufficiency. It also illustrates that a defendant’s chosen theory of nonparticipation can foreclose an ineffective-assistance claim based on counsel’s failure to pursue the inconsistent theory of self-defense.
The opinion further confirms that Nebraska courts may impose consecutive, maximum prison terms within statutory limits when the sentencing record reflects repeated offenses, failed supervision, and a substantial risk of reoffending.