State v. Durst
| Decision Date | 23 June 1989 |
| Docket Number | No. 88-563,88-563 |
| Parties | STATE of Nebraska, Appellee, v. Patrick W. DURST, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict.
2. Convictions: Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt.
3. Criminal Law: Theft. Ownership of chattels may, in an indictment for their theft, be laid in the owner, or in the person who at the time of theft was in the actual peaceable possession, although such person may have no other property interest therein than the right of possession as against the thief.
Kevin V. Schlender, York, for appellant.
Robert M. Spire, Atty. Gen., and Fredrick F. Neid, for appellee.
Patrick W. Durst appeals his conviction, following a jury trial, of theft by unlawful taking of property having a value of more than $1,000, a Class III felony. The defendant was sentenced to a term of not less than 4 nor more than 10 years' imprisonment. In this appeal, the appellant contends that the evidence presented at trial was insufficient to identify him as the individual who stole the vehicle and that the State failed to prove beyond a reasonable doubt that he took property belonging to the person named in the complaint.
On November 18, 1987, Phillip Swartz parked his 1978 Pontiac Firebird Trans Am in the parking lot of the Pioneer Hybrid Seeds plant in York, Nebraska, and went in to work. Swartz left his door unlocked and the keys in the ignition. That afternoon he discovered that his automobile was no longer in the parking lot. He ascertained that no one he knew had borrowed his car, and then reported the vehicle as stolen.
The following day Swartz was notified by the Council Bluffs, Iowa, police department that officers had found his car. Swartz testified that he valued his car at approximately $2,500 on the date that the car was taken.
In his first assignment of error, Durst contends that the evidence identifying him as the individual who stole the Swartz vehicle is insufficient to support the jury's verdict. In determining whether evidence is sufficient to sustain a conviction in a jury trial, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987). Viewing the evidence in favor of the State, the evidence is sufficient to sustain the conviction of the appellant for theft.
The conviction of the appellant is based solely on circumstantial evidence, as there is no direct testimony from a witness who actually saw the appellant taking the vehicle from the parking lot. All identification was purely circumstantial. However, this court has repeatedly held that a conviction may rest solely on circumstantial evidence. State v. Trimble, 220 Neb. 639, 371 N.W.2d 302 (1985). One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. State v. Trimble, supra; State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).
Regarding the identification of the appellant, although identification of the accused is an essential element in establishing guilt beyond a reasonable doubt, this identification can be inferred from all the facts and circumstances that are in evidence. State v. Kaba...
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State v. Wickline, s. S-90-1135
...the result of Wickline's trial would have been different if Hobbs' identification of him had not been admitted. In State v. Durst, 232 Neb. 639, 441 N.W.2d 627 (1989), this court affirmed the defendant's conviction for theft of an auto upon circumstantial evidence, despite a lack of a posit......
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State v. Johns, 88-581
...Even though the evidence in large part was circumstantial, it is sufficient to support the jury's guilty verdict. See State v. Durst, 232 Neb. 639, 441 N.W.2d 627 (1989). In his second assignment of error, Johns argues that under Gonzales v. Grammer, 848 F.2d 894 (8th Cir.1988), his two pri......