State v. Diesing

• Decision Date: 10 February 1989
• Docket Number: No. 88-230,88-230
• Citation: 435 N.W.2d 190,231 Neb. 132
• Parties: STATE of Nebraska, Appellee, v. Edward M. DIESING, Appellant.
• Court: Nebraska Supreme Court

Page 190

435 N.W.2d 190

231 Neb. 132

STATE of Nebraska, Appellee, v. Edward M. DIESING, Appellant.

No. 88-230.

Supreme Court of Nebraska.

Feb. 10, 1989.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, 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. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Criminal Law: Appeal and Error. Factual findings of a judge who serves as the trier of fact in a criminal case will not be disturbed on appeal unless clearly wrong.

3. Circumstantial Evidence: Convictions. Circumstantial evidence is sufficient to support a conviction if such evidence and reasonable inferences that may be drawn from the evidence establish a defendant's guilt beyond a reasonable doubt.

4. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

Gregory M. Schatz, of Stave, Coffey, Swenson, Jansen & Schatz, P.C., Omaha, for appellant.

Robert M. Spire, Atty. Gen., Gary P. Bucchino, Omaha City Prosecutor, and J. Michael Tesar, Omaha, for appellee.

HASTINGS, C.J., WHITE and FAHRNBRUCH, JJ., and FUHRMAN and WHITEHEAD, District Judges.

FAHRNBRUCH, Justice.

Edward M. Diesing appeals the Douglas County District Court's affirmance of his conviction of what is commonly called "driving while intoxicated," a violation of Neb.Rev.Stat. § 39-669.07 (Supp.1987).

After his Douglas County Court trial, the defendant was placed on probation for 6 months, he was required to attend alcohol education classes, his driver's license was impounded for 60 days, and as a condition of probation, he was required to pay a $100 fine and costs of prosecution. We affirm.

Diesing assigns four errors: (1) that the evidence is insufficient to show he was operating his vehicle on a public highway or street; (2) that the evidence is insufficient to show that he was under the influence of alcohol at the time the accident occurred; (3) that the trial court erred in not sustaining his motion for a directed verdict at the end of the State's evidence; and (4) that the trial court erred in not sustaining his motion for a directed verdict at the end of all the evidence.

In determining the sufficiency of the evidence to sustain a 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. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Wiggins, 230 Neb. 632, 432 N.W.2d 824 (1988); State v. Masur, 230 Neb. 620, 432 N.W.2d 815 (1988).

Diesing was involved in a property damage accident in the 3900 block of Dewey Avenue in Omaha, Nebraska. The Omaha police department was notified. The defendant told the responding police officers that he had struck the rear of a parked automobile. Diesing testified that his Jaguar automobile was parked in the driveway of a residence where he was visiting. He had been asked to move his car so another person could leave. Diesing moved his car from the driveway and attempted to park parallel with the curb. While parking, Diesing struck the rear of a parked car.

Two responding police officers, upon arrival at the scene, noticed Diesing had glassy eyes and slurred speech, and was unable to walk without swaying. The odor of alcohol about Diesing was strong. The officers asked Diesing to perform several field sobriety tests. He had difficulty saying the alphabet, was unable to stand on one leg for 30 seconds without hopping, and could not walk forward and back in a heel-to-toe manner. Diesing did hesitantly, though acceptably, touch his nose with his finger.

The defendant was eventually taken to the police station, where he submitted to a breath alcohol content test. The test results showed that Diesing had an alcohol concentration of .15 of 1 gram by weight of alcohol per 210 liters of his breath. Section 39-669.07, the statute under which the complaint was brought, provides that it is unlawful for any person to operate or be in the actual physical control of a motor vehicle when such person has a concentration of .10 of 1 gram or more by weight of alcohol per 210 liters of his or her breath. A violation of § 39-669.07 may also be proved by showing that a person operated or was in physical control of a motor vehicle while under the influence of alcoholic liquor. The defendant admitted to having three beers prior to the accident and claimed to have consumed one more beer while waiting for police officers to arrive.

Implicit in the trial court's judgment are findings that the accident at issue occurred on a city street and that Diesing was in violation of § 39-669.07 at that time. These are findings of fact. Factual findings of a judge who serves as the trier of fact in a criminal case will not be disturbed on appeal unless clearly wrong. State v. Foster, 230 Neb. 607, 433 N.W.2d 167 (1988); State v. Ladehoff, 228 Neb. 812, 424 N.W.2d 361 (1988).

We first consider Diesing's claim that the evidence is insufficient to show he was operating his vehicle on a public ...