State v. Coffman, 87-059
| Decision Date | 11 December 1987 |
| Docket Number | No. 87-059,87-059 |
| Citation | 416 N.W.2d 243,227 Neb. 149 |
| Parties | STATE of Nebraska, Appellee, v. Larry Scott COFFMAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Appeal and Error. Error which is assigned but not discussed will not be considered by this court.
2. Directed Verdict: Convictions. In a criminal trial, the trial court will be justified in directing a verdict of not guilty only where there is a total failure of competent proof to support a material allegation in the information, or where the testimony is of so weak or doubtful a character that a conviction based thereon could not be sustained.
3. Verdicts: Appeal and Error. A jury verdict of guilty will not be overturned on appeal unless it is based on evidence so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support the verdict.
4. Trial: Evidence. The admission of improper evidence on one side provides no justification for the other party to introduce its own incompetent or improper evidence.
5. Trial: Evidence. Admission of evidence, pursuant to Neb.Rev.Stat. § 27-106 (Reissue 1985), rests with the sound discretion of the court.
6. Trial: Jurors: Presumptions. The competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.
7. Trial: Jurors. A juror is not incompetent merely because he is an acquaintance of one of the witnesses.
8. Trial: Jurors. Retention or rejection of a juror is a matter of discretion with the trial court.
9. Jury Instructions: Evidence. Before a jury instruction can be said to unduly emphasize a part of the evidence, it must be found to misrepresent either the totality or the existence of the evidence, or it must infringe upon the province of the jury.
10. Habitual Criminals: Prior Convictions: Proof. Neb.Rev.Stat. § 29-2222 (Reissue 1985) does not confine proof on the issue of the defendant's prior convictions to the documents therein mentioned.
Dennis R. Keefe, Lancaster Co. Public Defender, and Robert G. Hays, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Elaine A. Catlin, Minden, for appellee.
The defendant, Larry Scott Coffman, was convicted by a jury of first degree sexual assault under Neb.Rev.Stat. § 28-319(1)(a) (Reissue 1985), a Class II felony. The court found the defendant to be a habitual criminal and sentenced him to an indeterminate term of incarceration of from 10 to 12 years.
Thirteen errors are assigned which can be summarized as follows: (1) The court abused its discretion in overruling the defendant's motion for a protective order and appointment of a special prosecutor; (2) the court erred in finding the evidence sufficient to submit the question of guilt to the jury and to support a finding of guilt by the jury; (3) the court erred in sustaining the State's hearsay objection to a question asked of Shannon Mills; (4) the court erred in overruling defendant's request that Bradley Carper be dismissed as a juror and that a mistrial be declared; (5) the court erred by giving two separate instructions which stated that they could consider the defendant's prior felony convictions in weighing his credibility; and (6) the court erred in finding the defendant to be a habitual criminal, resulting in an excessive sentence. We affirm.
The first assignment of error was not addressed in the appellant's brief and was later abandoned at oral argument. Error which is assigned but not discussed will not be considered by this court. Neb.Ct.R. of Prac. 9D(1)d (rev. 1986); Meis v. Grammer, 226 Neb. 360, 411 N.W.2d 355 (1987).
The second assignment of error goes to the sufficiency of the evidence. In State v. Dwyer, 226 Neb. 340, 344, 411 N.W.2d 341, 344 (1987), we set forth the applicable rules of law in this area:
In Nebraska, it has been held that a trial court will be justified in directing a verdict of not guilty only where there is a total failure of competent proof to support a material allegation in the information, or where the testimony is of so weak or doubtful a character that a conviction based thereon could not be sustained. State v. Meints, 225 Neb. 335, 405 N.W.2d 15 (1987); State v. Donnelson, 225 Neb. 41, 402 N.W.2d 302 (1987). In determining whether the evidence is sufficient to sustain a conviction in a jury trial, this court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. Those determinations are within the province of the jury. State v. Meints, supra; State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986). A jury verdict of guilty will not be overturned on appeal unless it is based on evidence so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support the verdict. State v. Joy, 220 Neb. 535, 371 N.W.2d 113 (1985).
The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987). After a jury has considered the evidence and returned a verdict of guilty, that verdict on appeal may not, as a matter of law, be set aside for insufficiency of evidence if the evidence sustained some rational theory of guilt. State v. Wilkening, 222 Neb. 107, 382 N.W.2d 340 (1986).
The defendant does not deny that he had sexual intercourse with the victim, but claims that the act was consensual. The defendant argues that the testimony of the victim with respect to the issue of consent is of so weak and doubtful a character that no reasonable juror could find beyond a reasonable doubt that the defendant had forcible sexual intercourse with the victim. With this we cannot agree.
The State produced overwhelming evidence that the act was in fact forceful. The victim supplied the jury with a detailed account of the event. She met the defendant in April of 1986 while they were participating in a study at Harris Laboratories. On June 12, 1986, she had a chance meeting with the defendant at a liquor store. She invited the defendant and three of his friends to her residence for a beer. The defendant agreed and proceeded with his friends to the victim's trailer house, where they all sat around the kitchen table for several hours. The victim went to the bathroom, and when she came out, she realized she was alone in the trailer with the defendant. The defendant grabbed her and shoved her into the bedroom. She struggled and screamed, and the defendant responded by punching her in the face, approximately 15 times in all. The defendant ripped off the two shirts the victim was wearing and took off her shorts. The victim testified that she screamed, from time to time, for him to quit hitting her and for assistance. In response to this the defendant would cover her mouth and nose with his hand. The entire assault lasted about 45 minutes.
The victim's testimony was corroborated by three neighbors. Sonja Buchanan testified that she heard the victim shouting, "Don't hit me any more," and also heard the name Larry. She stated that the screaming lasted on and off for about 45 minutes.
After the assault the victim went to Tina Milburn's house. Milburn testified that the victim was very upset and reported to her that she had been raped. Milburn observed that the victim's face was red and swollen and that she had been beaten up. Another neighbor, Ron Lasher, testified that he heard the victim call for help approximately seven times.
Dr. Kent Eakins, who examined the victim after the assault, testified that there were fresh bruises on her face. Margaret Bunn testified that she observed the victim earlier in the day and did not notice any redness or bruises on her face. The two shirts which were ripped off the victim were also in evidence.
Absent an eyewitness, it is hard to imagine how the victim's testimony with regard to consent could have been more thoroughly corroborated. It can hardly be said that such testimony is weak or doubtful. There was competent proof to submit the issue of nonconsent to the jury, and there was sufficient evidence to support the jury's guilty verdict. The defendant's second assignment of error is therefore without merit.
In his third assignment of error defendant contends that the court abused its discretion by sustaining the State's hearsay objection to a question posed by defense counsel of his witness, Shannon Mills. Shannon Mills was among those present at the victim's trailer on the night in question. Mills was called by the defense in an apparent effort to corroborate the defendant's version of the events which transpired that night. On cross-examination, the State asked Mills whether Gloria Pulhamus, a friend of the defendant's, had told him what to tell the police in regard to their investigation of this case. On redirect, counsel for defense attempted to show that Mills had not discussed that matter with Pulhamus. He asked the witness: "[D]id you see her [Gloria Pulhamus] again before you talked to Officer Martin?" Mills' response was, "No, because that was the night she was trying to kill herself with some drugs." On recross, the State followed up on the witness' comment as follows:
Q. Mr. Mills, you indicated that Gloria Pulhamus was really upset and was trying to kill herself with some drugs?
A. Yeah, because I had to call the cops and they had to break her door in.
Q. Was that because she was so upset about what was going on with Larry?
A. Yeah.
....
Q. You care about Gloria a lot; don't you?
A. As a friend, yes. As far as any physical contact or anything like that or anything else, I have nothing in common.
Q. But you don't want her to commit suicide; do you?
A. No.
Q. Do you think that that's a real possibility for Gloria?
A. Well, she would have....
Q. Have you ever known her to try...
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