State v. Culver
| Decision Date | 18 August 1989 |
| Docket Number | No. 88-419,88-419 |
| Citation | 233 Neb. 228,444 N.W.2d 662 |
| Parties | STATE of Nebraska, Appellee, v. Lori A. CULVER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Verdicts: Appeal and Error. It is not the province of the Supreme 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, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
2. Theft: Value of Goods: Words and Phrases. Under Neb.Rev.Stat. § 28-511(1) (Reissue 1985), theft consists of taking or exercising control over movable property of another with intent to deprive him or her thereof. The value of the property stolen is no longer an element of the crime and is important only in determining the penalty.
3. Juries: Discrimination: Prosecuting Attorneys: Proof. In order to make a prima facie case of discrimination in the selection of a jury, a criminal defendant must show that (1) she or he is a member of a cognizable racial group, (2) the prosecutor used peremptory challenges to remove members of the defendant's race for the venire, and (3) the facts and other relevant circumstances give rise to an inference that the prosecutor used those challenges to exclude potential jurors because of their race.
4. Trial: Juries: Discrimination: Appeal and Error. A trial court's determination as to whether a defendant has established purposeful discrimination in the selection of a jury is a finding of fact which will not be reversed on appeal unless clearly erroneous.
5. Constitutional Law: Equal Protection: Jurors. The equal protection clause does not prohibit peremptory challenges against jurors on the basis of gender.
6. Constitutional Law: Juries. The fair cross-section principle, derived from the sixth amendment to the Constitution of the United States, does not apply to the use of peremptory challenges in the selection of petit juries.
Dennis R. Keefe, Lancaster County Public Defender, and Michael D. Gooch, for appellant.
Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.
After trial to a jury, the defendant, Lori A. Culver, was convicted on four counts of misdemeanor theft and was sentenced to probation for 2 years. As part of the sentence, the defendant was to be confined in the county jail for 90 days, with credit for 51 days, and was required to make restitution to the victims.
Upon appeal, the defendant contends that the evidence was not sufficient to sustain the verdicts of guilty and that the trial court erroneously permitted the State to exercise peremptory challenges upon the basis of gender.
The offenses consisted of stealing purses from a dressing room at a church wedding. The victims were the bride, Diane Quesada, and her attendants at the wedding on November 30, 1985, which took place at the Berean Fundamentalist Church in Lincoln, Nebraska. The room used as a dressing room was a classroom on the south hall of the church. The thefts were discovered just before the ceremony was to begin. At about that time, the defendant and a man, neither of whom were guests at the wedding, were seen leaving the church in a suspicious manner. The defendant was carrying a large, cylindrical-shaped gym bag over her shoulder, which appeared to be full.
Most of the victims and other persons who saw the defendant leaving the church were unable to make a positive identification of the defendant. However, Beth McCulley, who was a bridesmaid and whose purse was stolen, testified that at about 1:30 p.m., when she returned to the dressing room to get a Kleenex from her purse, she noticed two individuals in the doorway of the dressing room who were in the process of leaving the room. She described the individuals as a male, with light-brown hair and a mustache, who was wearing a tan trenchcoat. The other individual was a large-framed woman with very dark brown hair, wearing a royal-blue and black cape. Her observations were made from within a few feet of these individuals. After watching the individuals walk down the hall, she entered the dressing room and found her purse missing.
After the wedding, McCulley gave a brief description of the incident and the suspects to a police officer and on several occasions thereafter met with the sheriff's office in an attempt to identify the defendant. She first looked at individual photographs and then at a photographic lineup. Several weeks after the wedding, McCulley made a positive identification of the defendant and the man that she had seen leaving the dressing room at the church on November 30, 1985. At trial, however, McCulley was unable to positively identify the defendant as the individual she had seen at the church and had no recollection independent from the photographs from which she had made her earlier identification.
There was other evidence that connected the defendant with the thefts through the use, on the day of the theft, of bank and credit cards which were stolen from McCulley. The defendant's companion, Allen Robinson, was identified through photographs made at the time the stolen bank and credit cards were used at an automatic teller machine in Lincoln. The defendant and Robinson were living together in Manhattan, Kansas, and a search of their residence resulted in the discovery of physical evidence which matched items shown in the photographs taken at the Bank-In-The-Box location in Lincoln.
Joseph Splichal, a detective sergeant in the Lancaster County Sheriff's Department, participated in the followup investigation of the thefts and specifically assisted in the execution of the search warrant. Splichal had shown McCulley a photographic lineup of possible suspects and testified that McCulley had identified the defendant as the woman she had seen leaving the dressing room at the church. McCulley had also identified the defendant's companion as Robinson.
Although much of the evidence was circumstantial, it was sufficient, if believed, for the jury to find beyond a reasonable doubt that the defendant had participated in each of the thefts. It is not the province of the Supreme 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, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Bowen, 232 Neb. 725, 442 N.W.2d 209 (1989); State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989); State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989).
The defendant also contends that the evidence was not sufficient to support the finding by the jury that the items stolen from Marissa Brownawell, a bridesmaid in the wedding, had a value of $40, and the items stolen from Barbara Morrison, the maid of honor, had a value of $50.
Neb.Rev.Stat. § 29-2026.01 (Reissue 1985) provides: "When the indictment charges an offense against the property of another by larceny, embezzlement or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in its verdict the value of the property stolen, embezzled, or falsely obtained."
Brownawell valued her purse at $15, and the contents, which included socks, new makeup, and an address book, at about $20. Morrison testified that her purse was a black leather clutch purse with a zipper across the top and contained $10 to $15, a checkbook, a J.C. Penney credit card, a Bank-In-The-Box card, a Wesleyan identification card, and a Sports Courts membership card.
Theft consists of taking or exercising control over movable property of another with intent to deprive him or her thereof. Neb.Rev.Stat. § 28-511(1) (Reissue 1985). The value of the property stolen is no longer an element of the crime and is important only in determining the penalty. See, State v. Redding, 213 Neb. 887, 331 N.W.2d 811 (1983); State v. Reed, 228 Neb. 645, 423 N.W.2d 777 (1988); State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989). To the extent that State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987), and State v. Scott, 225 Neb. 146, 403 N.W.2d 351 (1987), state that the value of the property stolen is an element of the crime charged, that language is disapproved. The determination of the value of the property stolen, of course, remains a question to be determined by the jury.
Neb.Rev.Stat. § 28-518(4) (Reissue 1985) provides: "Theft constitutes a Class II misdemeanor when the value of the thing involved is one hundred dollars or less."
The finding by the jury as to the value of the items stolen from the victims Brownawell and Morrison, even if erroneous, was not prejudicial, since any finding of a value of $100 or less would support verdicts of guilty of Class II misdemeanor theft.
The defendant's other assignment of error relates to the State's exercise of its peremptory challenges.
The record shows that of the 24 persons selected to be examined in voir dire, 11 were men and 13 were women. During the examination, the State exercised six peremptory challenges to exclude men. Defense counsel objected that these challenges had been made on the basis of gender discrimination and asked the trial court to require the State to explain why those individuals were struck. The defendant's request was denied.
In State v. Thompson, 231 Neb. 771, 779, 438 N.W.2d 131, 138 (1989), we held:
"In order to make a prima facie case of discrimination in the selection of a jury, a criminal defendant must show that...
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