State v. Ayres
| Decision Date | 04 January 1991 |
| Docket Number | No. 89-1145,89-1145 |
| Parties | STATE of Nebraska, Appellee, v. James R. AYRES, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Weapons: Words and Phrases. For the purposes of Neb.Rev.Stat. § 28-1205(1) (Reissue 1989), a "deadly weapon" is any instrument which, in the manner used or intended to be used, is capable of producing death or serious bodily injury.
2. Intent. The intent with which an act is performed may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding the incident.
3. Intent: Circumstantial Evidence: Proof. The existence of an actor's intent is a question of fact and may be established through circumstantial evidence.
4. Convictions: Appeal and Error. When reviewing the sufficiency of the evidence to support a conviction in a criminal prosecution, it is not the province of the Nebraska Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. These are all matters for the trier of fact, and a conviction must be sustained if, viewing the evidence in the light most favorable to the State, there is sufficient evidence to support the conviction.
5. Assault: Intent. A person who intentionally or knowingly causes bodily injury to another by means of a dangerous instrument is guilty of assault in the second degree.
6. Assault: Words and Phrases. For the purposes of Neb.Rev.Stat. § 28-309(1)(a) (Reissue 1989), a "dangerous instrument" is any object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury.
7. Assault: Intent. The intent required by Neb.Rev.Stat. § 28-309(1)(a) (Reissue 1989) is not an intent to cause bodily injury but, rather, an intent to use the dangerous instrument in the manner in which it was in fact used.
8. Words and Phrases. "Serious bodily injury" is bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.
9. Weapons: Words and Phrases. A "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them.
10. Sentences: Appeal and Error. The Nebraska Supreme Court will not disturb on appeal a sentence that is within the statutory limits, absent an abuse of discretion.
Kirk E. Naylor, Jr., for appellant.
Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.
After a bench trial defendant-appellant, James R. Ayres, was adjudged guilty of second degree assault, in violation of Neb.Rev.Stat. § 28-309 (Reissue 1989); child abuse, in violation of Neb.Rev.Stat. § 28-707 (Reissue 1989); and using a weapon to commit a felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1989). He was sentenced to two terms of imprisonment for not less than 20 months nor more than 5 years on the assault and child abuse convictions, to be served concurrently, and to not less than 5 nor more than 10 years on the weapon conviction, to be served consecutively to the other sentences. Ayres does not challenge the adjudication of guilt on the child abuse charge, but appeals the adjudications of guilt on the assault and weapon charges. He asserts, with respect to those two offenses, that the district court erred in finding the evidence sufficient to support the adjudications. In addition, he asserts that each of the three sentences is excessive. We affirm in all respects.
The evidence presented at trial, when viewed in the light most favorable to the State, shows the following: Ayres was the guardian of the 10-year-old victim, Michael, and the victim's two older brothers, Scott and Billy. Ayres, the cousin of the children's mother, was taking care of the children while their parents were imprisoned.
On the morning of May 30, 1988, Ayres returned to the trailer in which he and the children were living and discovered it in disarray, with a cabinet door knocked off its hinges. He asked Scott and Michael who had done the damage. Michael "swore to God" that he did not do it, which, based on his past experience, convinced Ayres of Michael's guilt. Ayres sent Scott to get the eldest brother, Billy, who was at a neighbor's.
When Billy arrived, Ayres was yelling at Michael. Ayres told Billy to fix the cabinet door, and then commenced beating Michael. This involved picking him up by the throat, tossing him against the cabinet, biting him on the chin, hitting him with fists, and kicking him with steel-toed boots. At some point Ayres started to hit Michael with a "spanking" board, described in the evidence as being approximately 12 inches long by 3 inches wide and about one-half of an inch thick, but which was actually 14 inches long and three-fourths of an inch thick. During the beating, the board broke lengthwise in two. According to Ayres, the beating lasted about 5 to 7 minutes. After he had finished beating the child, Ayres took him into the bathroom and forced him to eat a bar of soap. At this point Ayres' brother arrived, and the two left to rent a tuxedo for an upcoming wedding, leaving Michael alone with 15-year-old Billy. Later, two of Billy's friends stopped by and viewed Michael's injuries. A short time later, an unidentified person called the police.
The police took Michael to a hospital emergency room and arrested Ayres when he returned to the trailer. The physician who examined Michael testified that the child
had numerous fresh bruises over a wide area of his body.... He had extensive fresh bruises across his buttocks on both sides, his anterior thighs, his cheek and jaw on both sides, his left ear, both on the ear itself and behind it. He also had bruises on his left forearm, his upper arm, his left shoulder, his right shoulder, and the back of his right hand.
....
... He had some swelling about his jaw line and about his buttocks, especially on the left side. I found this to be remarkable in that most bruises are still flush with the surface of skin; but swelling to the degree that I saw, meaning a quarter inch to a half an inch away from where the normal skin line would be, would indicate a more severe injury.
No bones were broken. Although there was evidence of large amounts of hemoglobin in his urine, tests revealed no damage to Michael's kidneys. Because of his injuries, Michael was ordered hospitalized overnight but was kept an additional day beyond that, waiting to be picked up by Child Protective Services.
As to the sufficiency of the evidence to support the assault and weapon charges, a person who "[i]ntentionally or knowingly causes bodily injury to another person with a dangerous instrument" is guilty of assault in the second degree. § 28-309(1)(a). A person who uses a firearm or any other deadly weapon to commit a felony is guilty of using a weapon to commit a felony. § 28-1205(1). A "deadly weapon" is any instrument which, in the manner used or intended to be used, is capable of producing death or serious bodily injury. Neb.Rev.Stat. § 28-109(7) (Reissue 1989).
Ayres claims the evidence was insufficient to support a determination that he "possessed the necessary mental state to conclude a 'deadly weapon' or 'dangerous instrument' was used to commit the crimes alleged." Brief for appellant at 10. It is Ayres' position that his assault and weapon convictions are error because he did not use the spanking board either in a manner which would produce serious bodily injury or death or with the intention of using it in such a manner.
The intent with which an act is performed may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding the incident. The existence of this state of mind is a question of fact and may be established through circumstantial evidence. State v. Meyer, 236 Neb. 253, 460 N.W.2d 656 (1990); State v. Peterson, 236 Neb. 450, 462 N.W.2d 423 (1990); State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989). When reviewing the sufficiency of the evidence to support a conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. These are all matters for the trier of fact, and a conviction must be sustained if, viewing the evidence in the light most favorable to the State, there is sufficient evidence to support the conviction. State v. Fellman, 236 Neb. 850, 464 N.W.2d 181 (1990); State v. Johnson, 236 Neb. 831, 464 N.W.2d 167 (1...
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