State v. Dimmitt, A-96-641

• Decision Date: 11 February 1997
• Docket Number: No. A-96-641,A-96-641
• Parties: STATE of Nebraska, Appellee, v. Troy J. DIMMITT, Appellant.
• Court: Nebraska Court of Appeals

Page 498

560 N.W.2d 498

5 Neb.App. 451

STATE of Nebraska, Appellee, v. Troy J. DIMMITT, Appellant.

No. A-96-641.

Court of Appeals of Nebraska.

Feb. 11, 1997.

Syllabus by the Court

1. Courts: Juvenile Courts: Jurisdiction: Waiver. The decision whether to waive jurisdiction and transfer a case to juvenile court is governed by Neb.Rev.Stat. § 43-261 (Reissue 1993).

2. Courts: Juvenile Courts: Jurisdiction. In order for the district court to retain jurisdiction, the court does not need to resolve every factor against the juvenile.

3. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. The district court's decision on a motion to transfer a case to juvenile court is to be upheld absent an abuse of discretion.

4. Criminal Law: Pretrial Procedure. Neb.Rev.Stat. § 29-1912 (Reissue 1995) governs what material a criminal defendant is entitled, as a matter of right, to discover.

5. Criminal Law: Pretrial Procedure. Unless granted by law as a matter of right, discovery of information by a criminal defendant is within the discretion of the trial court.

6. Minors: Witnesses: Impeachment: Juries. It is improper to use a juvenile's criminal history to cast the juvenile as a dishonest juvenile offender in hopes of convincing the jury to disbelieve his or her testimony.

7. Criminal Law: Trial: Joinder. A criminal defendant does not have a constitutional right to a separate trial.

8. Trial: Joinder: Proof. The right to a separate trial depends upon a showing by the party challenging consolidation that prejudice will result from a joint trial.

9. Convictions: Burglary: Words and Phrases. A person may be convicted of burglary if he willfully, maliciously, and forcibly breaks and enters any real estate with intent to commit any felony or with intent to steal property of any value. Neb.Rev.Stat. § 28-507 (Reissue 1995).

10. Convictions: Burglary. No evidence of actual theft or asportation of property is necessary to support a burglary conviction.

11. Arson: Words and Phrases. Second degree arson is defined as the intentional burning of a building by a criminal act. Neb.Rev.Stat. § 28-503 (Reissue 1995).

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

13. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal absent an abuse of discretion by the sentencing court.

Patrick L. Neid, Grand Island, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

MILLER-LERMAN, C.J., and IRWIN and SIEVERS, JJ.

IRWIN, Judge.

I. INTRODUCTION

Troy J. Dimmitt appeals from his convictions and sentences for second degree arson and burglary. On appeal, Dimmitt challenges the district court's order denying his motion to transfer the case to juvenile court, the district court's order denying him discovery of the prior criminal histories of several prosecution witnesses, the district court's order consolidating his trial with that of his codefendant, the sufficiency of the evidence to sustain his convictions, and the sentences imposed by the district court. Finding no merit to Dimmitt's assignments of error, we affirm.

II. BACKGROUND

Dimmitt was charged by information on February 6, 1996, with one count of burglary and one count of second degree arson. The events which led to the charges occurred during the late night and early morning hours of November 23 and 24, 1995. According to the evidence at trial, Dimmitt was present when several of his friends discussed breaking into a home in Grand Island, Nebraska, when the occupants were known to be out of town. Dimmitt drove three of his friends to the house, and one of them threw a brick through a glass door. The group then proceeded to enter the house, and some property was removed. The evidence is not clear as to whether or not Dimmitt actually removed any property.

During the early morning hours of November 24, 1995, Dimmitt and two of his friends returned to the house. According to the evidence at trial, Dimmitt entered the house carrying a gas can. Dimmitt then proceeded to pour gasoline throughout the main floor of the house and to light the house on fire. By the time fire personnel responded to the fire, the house was destroyed.

Dimmitt was 16 years old at the time of the alleged events. He had turned 17 by the time the information was filed charging him with the crimes. On February 9, 1996, Dimmitt filed a motion requesting the district court to waive jurisdiction and transfer the case to juvenile court. After a hearing on February 26, the court denied the motion.

On February 29, 1996, Dimmitt filed a motion for discovery requesting, inter alia, information concerning prior criminal records of various juveniles who were to be prosecution witnesses. On March 11, the district court denied that portion of the discovery motion which sought criminal records of juvenile witnesses and granted the remainder of the motion.

On March 12, 1996, the State filed a motion seeking to consolidate Dimmitt's trial with that of his codefendant. On March 26, the district court granted the motion. The two cases were tried together before a jury on April 8 through 10. Dimmitt was found guilty of burglary and second degree arson.

On April 22, 1996, Dimmitt filed a motion for new trial. The district court overruled the motion on May 7. On May 14, the district court sentenced Dimmitt to consecutive sentences of 1 to 2 years' imprisonment for the burglary conviction and 5 to 7 years' imprisonment for the arson conviction. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Dimmitt assigns six errors, which we have consolidated for discussion to five. Dimmitt asserts that (1) the district court erred in denying his motion to transfer the case to juvenile court, (2) the district court erred in denying his motion for discovery of prior criminal histories of several prosecution witnesses, (3) the district court erred in sustaining the State's motion to consolidate his trial with that of his codefendant, (4) the verdict is not supported by sufficient evidence and is contrary to law, and (5) the sentences imposed by the district court are excessive.

IV. STANDARD OF REVIEW

The decision whether to waive jurisdiction and transfer a juvenile's case to juvenile court is within the discretion of the district court. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994); State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993); State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990). Unless granted to a defendant by law as a matter of right, discovery is within the discretion of the trial court, whose ruling will be upheld on appeal absent an abuse of discretion. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). A trial court's ruling on a motion for consolidation of properly joinable prosecutions will not be disturbed on appeal absent an abuse of discretion. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). An appellate court will not disturb a sentence imposed by the district court which is within the statutory limits, absent an abuse of discretion. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Bensing, 249 Neb. 900, 547 N.W.2d 464 (1996).

A judicial abuse of discretion exists when the reasons or rulings of a trial court are clearly untenable, thereby unfairly depriving a litigant of a substantial right or a just result in matters properly submitted for judicial disposition. State v. Mantich, supra.

In determining whether a conviction in a jury trial is supported by sufficient evidence, an appellate court will not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury. State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996); State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v. Mantich, supra.

V. ANALYSIS

1. TRANSFER

Dimmitt filed a motion requesting the district court to waive jurisdiction and transfer his case to juvenile court. Dimmitt was 16 years old at the time of the alleged events and had turned 17 by the time the information was filed charging him with these crimes. Additionally, the record indicates that Dimmitt had voluntarily moved out of his parents' home several months prior to the alleged incidents, was not attending school, and was employed sporadically.

The decision whether to waive jurisdiction and transfer a case to juvenile court is governed by Neb.Rev.Stat. § 43-261 (Reissue 1993), which provides in part: "In deciding the motion [to transfer to juvenile court] the court shall, after considering the evidence and the reasons presented by the parties and the matters required to be considered by the county attorney pursuant to section 43-276, transfer the case unless a sound basis exists for retaining jurisdiction." According to Neb.Rev.Stat. § 43-276 (Reissue 1993), the factors to be considered include:

(1) The type of treatment [the] juvenile would most likely be amenable to; (2) whether there is evidence that the alleged offense included violence or was committed in an aggressive and premeditated manner; (3) the motivation for the commission of the offense; (4) the age of the juvenile and the ages and circumstances of any others involved in the offense; (5) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court, and, if so, whether such offenses were crimes against the person or relating to property, and other previous history of antisocial behavior, if any, including any...