State v. Costanzo

• Decision Date: 12 February 1988
• Docket Number: No. 87-254,87-254
• Citation: State v. Costanzo, 419 N.W.2d 156, 227 Neb. 616 (Neb. 1988)
• Parties: STATE of Nebraska, Appellee, v. Ricky J. COSTANZO, Appellant.
• Court: Nebraska Supreme Court

Page 156

419 N.W.2d 156

227 Neb. 616

STATE of Nebraska, Appellee, v. Ricky J. COSTANZO, Appellant.

No. 87-254.

Supreme Court of Nebraska.

Feb. 12, 1988.

Syllabus by the Court

1. 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.

2. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury--all of which is within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

3. Expert Witnesses: Assault. Where the injuries are objective and the conclusion to be drawn from proved basic facts does not require special technical knowledge or science, the use of expert testimony is not legally necessary to prove a causal connection between a blow and the injuries inflicted.

4. Evidence: Intent. The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

5. Jury Instructions: Evidence. A requested jury instruction is properly denied when there is no evidence to support that instruction.

6. Evidence: Juries: Proximate Cause: Assault. A jury may properly infer from the evidence that a single blow to a victim's jaw was the proximate cause of the victim's serious injuries.

7. Circumstantial Evidence: Juries: Self-Defense: Assault. To determine whether the defendant acted with justification or had the required intent for assault in the first degree, the jury may consider circumstantial evidence as to the force of the blow the defendant administered.

8. Jury Instructions: Lesser-Included Offenses. A court sua sponte may give a lesser-included offense instruction, but it is not required to do so unless the evidence warrants it and a party requests it.

9. Effectiveness of Counsel: Proof. To assert a successful claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area; (2) that his interests were not conscientiously protected; and (3) that if his attorney had been effective, there is a reasonable probability that the results would have been different.

10. Sentences: Appeal and Error. A sentence imposed within the limits prescribed by the statute in question will not be disturbed on appeal in the absence of an abuse of discretion.

11. Sentences. When imposing a sentence the trial court may consider a defendant's prior criminal record and the seriousness of the offense involved.

John Stevens Berry and Robert B. Creager of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Yvonne E. Gates, Lincoln, for appellee.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and HANNON, District Judge.

FAHRNBRUCH, Justice.

The defendant, Ricky J. Costanzo, was found guilty of assault in the first degree by a Douglas County District Court jury. The defendant appeals his conviction and indeterminate sentence of 5 to 10 years' imprisonment. We affirm.

Neb.Rev.Stat. § 28-308 (Reissue 1985) provides that a person who intentionally or knowingly causes serious bodily injury to another person is guilty of assault in the first degree. In this case, Costanzo delivered a single blow to the left jaw of Edward McCarthy, which knocked McCarthy to the sidewalk. The victim suffered brain damage, a broken jaw in two places, and other injuries.

Summarized, defendant's assigned errors are (1) insufficiency of the evidence for conviction; (2) error in instruction No. 10 as given, failure to give defendant's proposed instruction, and failure to sua sponte give a lesser-included offense instruction; (3) ineffective assistance of counsel; and (4) imposition of an excessive sentence. The assignments of error will be discussed in order, keeping in mind that "[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. Dwyer, 226 Neb. 340, 344, 411 N.W.2d 341, 344 (1987); and that

in determining the sufficiency of the evidence to sustain a criminal conviction, 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. Such matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

State v. Newson, 226 Neb. 867, 870, 415 N.W.2d 471, 473 (1987).

There was evidence that the victim, Edward McCarthy, was picked up at his home in Omaha by a friend, William Driscoll, at approximately 5 p.m., July 12, 1986. The pair drank some beer at the victim's home and then, at a club, had dinner without any alcoholic drinks. After that, with Driscoll driving, the pair picked up Driscoll's father at his home and then drove to Jerry's Parkway tavern, where one Kathy Shaw joined them. From there, the foursome proceeded to dograces in Council Bluffs, Iowa. After watching about 10 races, during which time each of the parties drank some beer, the foursome left. It was about 10 p.m. Driscoll's father was dropped off at his residence. The remaining threesome, with Driscoll still driving, went to four different taverns. Everyone drank some beer at each tavern. The group, sometime after midnight, arrived back at Jerry's Parkway bar, the place of employment of Shaw. Upon entering the tavern, Driscoll stopped for a minute or two of small talk with the defendant, whom he knew and who was drinking beer at a table near the front of the tavern. Driscoll then joined McCarthy at the bar. Shaw had two beers and left in her own automobile, which had been left near the tavern earlier. Both Driscoll and McCarthy drank some beer.

At about 12:50 a.m., Patrick Pecha, a drinking companion of Costanzo's, left the tavern to lie down in the defendant's truck. The truck was parked directly in front of the tavern. Costanzo thought Pecha had gone to the cab of the truck. As it turned out, Pecha lay down in the bed of the truck box. At 1 a.m., the bartender, Tama Goodall, gave a "last call." Shortly after that, McCarthy asked to purchase another beer, but was refused because his request came too late. Following some innocuous small talk, Costanzo passed some beer, in a pitcher, down the bar to McCarthy.

Driscoll and McCarthy drank some beer from defendant's pitcher. They then walked out of the tavern, with McCarthy following Driscoll. Near Costanzo's truck, Driscoll mentioned to McCarthy that he had seen a head sticking up from the bed of the truck and remarked to McCarthy that "somebody bit the dust." It was Pecha. McCarthy walked over and glanced into the truck bed. Driscoll testified he heard a door "slam open," looked back, and saw Costanzo running from the bar toward McCarthy. Because it appeared that the defendant was going to attack McCarthy, Driscoll yelled: "No, Ricky, don't." The defendant denied hearing the admonition.

Driscoll testified that McCarthy made a quarter turn, and as he did so, Costanzo struck him. Driscoll testified that McCarthy said nothing and never raised his fist to Costanzo. The defendant claimed Driscoll's position did not permit him to see McCarthy's hands or arms. Driscoll did not think that McCarthy ever saw the defendant at the truck. Driscoll testified that the defendant swung his right fist and hit McCarthy on the left jaw. McCarthy went down on his back. His head struck the sidewalk. McCarthy was unconscious, and there was no response. Costanzo went back into the bar.

Costanzo gave this version of the incident: As he was returning to his table from the tavern's restroom, Costanzo looked through a glass door and saw someone leaning into the back of his truck. The individual had his hands in the back of Costanzo's truck, where tools were kept. The defendant walked out onto the sidewalk in front of the tavern, saw Driscoll, and exchanged remarks with McCarthy. As the defendant approached the back of his truck, McCarthy spun around with his fist in the air to hit the defendant. "[S]o I swung at him and hit him one time" on the jaw, Costanzo testified. The defendant saw McCarthy fall down and told Driscoll that McCarthy would be all right. Then defendant walked back into the tavern, where he drank more beer. On direct examination, the defendant testified he was not sure if he tried to hit McCarthy with all of the force he had available to him and with all the strength he had in his right arm. The defendant acknowledged that he intentionally hit McCarthy, but claimed that it was in self-defense. It is inherent in the guilty verdict that the jury did not accept Costanzo's self-defense claim.

Driscoll testified that after the incident, he went back into the tavern and asked the defendant: "Ricky, what did you do that for? He didn't do anything to you." Costanzo replied: "That will teach him to mouth off in the bar." Then Costanzo threatened Driscoll: "Hey, punk, shut up or you're next." Driscoll further testified that he asked someone to call an ambulance, whereupon the defendant declared: "He doesn't need an ambulance, he's all right; I didn't hit him that hard." Driscoll said he told the defendant: "Ricky, he [McCarthy] is unconscious and he is...