State v. Back

• Decision Date: 21 August 1992
• Docket Number: No. S-91-158,S-91-158
• Citation: State v. Back, 488 N.W.2d 26, 241 Neb. 301 (Neb. 1992)
• Parties: STATE of Nebraska, Appellee, v. Richard G. BACK, Appellant.
• Court: Nebraska Supreme Court

Page 26

488 N.W.2d 26

241 Neb. 301

STATE of Nebraska, Appellee, v. Richard G. BACK, Appellant.

No. S-91-158.

Supreme Court of Nebraska.

Aug. 21, 1992.

Syllabus by the Court

1. Convictions: Verdicts: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition. On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

2. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and Error. A defendant who moves for dismissal or a directed verdict, proceeds with trial, and introduces evidence waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction.

3. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed.

4. Appeal and Error. Issues not properly presented and passed upon by the trial court may not be raised on appeal.

5. Drunk Driving: Convictions: Witnesses: Juries: Appeal and Error. It is not necessary, in order for a court to sustain a drunk driving conviction on appeal, that some witness offer at trial his or her opinion as to the defendant's intoxication. A jury is equally able to conclude whether or not the defendant was under the influence of alcoholic liquor.

6. Verdicts: Appeal and Error. On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict where such verdict is supported by relevant evidence.

7. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

8. Trial: Evidence: Jury Instructions: Lesser-Included Offenses. Where the State offers uncontroverted evidence on an essential element of a crime, mere speculation that the jury will disbelieve the evidence does not entitle the defendant to an instruction on a lesser-included offense.

9. Criminal Law: Death: Proximate Cause: Intent. An act or omission to act is a proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient intervening cause, to the resulting death. In many situations giving rise to criminal liability, the harm that results is unintended, yet is directly or indirectly caused by an act of the defendant. In such cases, where the death or injury caused by the defendant's conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.

Vincent M. Powers, Lincoln, for appellant.

Don Stenberg, Atty. Gen. and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ.

HASTINGS, Chief Justice.

Richard G. Back appeals his conviction, following a jury trial, of motor vehicle homicide, a violation of Neb.Rev.Stat. § 28-306(1) (Reissue 1989).

Back assigns as error the trial court's failure to grant the defendant's motion for dismissal at the close of the State's evidence "with respect to the charge of driving 'while under the influence,' " the court's overruling of defendant's motion for a new trial and "finding there was sufficient evidence to support the conviction that defendant was driving 'under the influence,' " the refusal of the trial court to submit to the jury the lesser-included offense of driving while intoxicated, the giving of instructions Nos. 4 and 8 because they contained the "under the influence" theory, and the denial of Back's motion to seek discovery in forma pauperis.

"In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition...." ...

"On a claim of insufficiency of evidence, an appellate court will not set aside a guilty verdict ... where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt."

(Citations omitted.) State v. Schumacher, 240 Neb. 184, 186, 480 N.W.2d 716, 718 (1992).

The accident in which Jennifer Krantz was killed occurred on the evening of September 8, 1989. At approximately 8:30 p.m. that day, three Malcolm High School students--Sean Powell, Rhonda Griess, and Jennifer Krantz--were attempting to start Griess' stalled Ford Mustang automobile. The Mustang was parked on the east shoulder of Spur 55, a state highway running generally from south to north toward Malcolm, Nebraska, and was facing north on what would be its right-hand side of the highway.

Powell, along with Griess and Krantz, had gotten a ride into Malcolm when the Mustang would not start, and they returned in Powell's pickup truck. Eventually, Powell parked his truck on the same side of the highway as the Mustang, facing in the opposite direction, the front end of the truck pointing to the front end of the Mustang. He had done this so that the headlights of his truck would shine into the opened hood of the Mustang in order that he could see while he attempted to dry the distributor cap of the Mustang or otherwise remedy the defect. Powell admitted that his pickup was, in part, on the paved portion of the highway; precisely where is not clear. The State's accident reconstruction expert testified that the pickup could have been as far into the east traffic lane as to have been positioned with its right-hand, or passenger side, wheels 2 feet 5 inches to the inside, or west, of the white line marking the outer edge of that northbound traffic lane. The expert also testified that the pickup might have been so far to the east that its right-hand wheels were directly on that white line. The pickup truck had its headlights on.

The Griess car was parked at a slight angle to the edge of the pavement and was located on the shoulder of the northbound lane of traffic. The hub of the left front wheel of the car was 19 inches east of the inside of the white line on the edge of the northbound traffic lane. The hub of the left rear wheel was 14 inches east of that same white line.

The accident happened between 9 and 9:30 p.m. Griess was in the driver's seat of her car, and Powell was working under the hood of Griess' car. Krantz was at the driver's side window of Griess' Mustang, talking to Griess. Krantz was leaning over, resting her arms on the car door as she spoke to Griess through the open window.

Back was driving his parents' Dodge Aspen station wagon from Lincoln, Nebraska, to Malcolm via Spur 55. Back testified that he was driving at approximately 45 miles per hour when the accident happened. He said that it was dark and had been raining off and on just before the collision. He came around a curve or turn, when he met another vehicle. The lights on both vehicles were dimmed, and after the other car went past, Back put his headlights on high, and he "noticed a flash in front of us and it was too late to stop and we had a collision with the truck."

Actually, just before hitting the truck, the passenger-side front bumper of Back's vehicle struck Krantz on the upper right thigh. The right side of Krantz' head was struck by the window support post next to the windshield on the passenger side of Back's station wagon. The outside of Krantz' left ankle knocked the driver's-side mirror off Griess' Mustang. This mirror stuck out approximately 6 or 7 inches from the driver's-side door.

Back admitted drinking six beers and a portion of a seventh, beginning about noon on the day of the accident. Back claimed he drank two of these beers and a portion of a third after approximately 8:30 p.m. Back claimed he had last eaten an hour and a half or more before drinking these final beers.

Powell smelled alcohol on Back's breath at the accident scene. The sheriff's deputy, Jeffrey Brandl, who interviewed Back in the hospital at approximately 10 p.m. smelled "a very noticeable odor of alcohol on his breath," saw that he had "bloodshot, watery eyes," and observed that Back's "speech was somewhat incoherent at times." However, the deputy was unable to give his opinion as to the sobriety of Back in the face of foundation objection.

A blood sample taken from Back at 11:52 p.m. was tested and revealed an alcohol content of .106 grams per 100 milliliters of blood. The State's pathologist calculated that Back's blood alcohol content at the time of the accident was at least .140 grams per 100 milliliters of blood. The pathologist also stated that it was "impossible" for Back to achieve that blood alcohol content had he consumed only the two-odd beers he claimed to have consumed shortly before the accident.

Back's motion to dismiss, made at the close of the State's case, was denied. Back objected to jury instruction No. 4, which allowed the jury to find Back guilty of motor vehicle homicide, based either upon driving while intoxicated or upon careless driving, or to find him not guilty. The instruction outlined the elements of each theory of guilt and allowed the jury to find Back guilty of motor vehicle homicide...