State v. Fellman

• Decision Date: 04 January 1991
• Docket Number: No. 89-1408,89-1408
• Citation: 236 Neb. 850,464 N.W.2d 181
• Parties: STATE of Nebraska, Appellee, v. Marc M. FELLMAN, Appellant.
• Court: Nebraska Supreme Court

Page 181

464 N.W.2d 181

236 Neb. 850

STATE of Nebraska, Appellee, v. Marc M. FELLMAN, Appellant.

No. 89-1408.

Supreme Court of Nebraska.

Jan. 4, 1991.

Syllabus by the Court

1. Constitutional Law: Standing: Statutes. To have standing to challenge the federal or state constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the language in question and must show that as a consequence of the alleged unconstitutionality, the contestant is deprived of a constitutionally protected right.

2. Constitutional Law: Initiative and Referendum: Statutes. Statutes prohibiting one from falsely swearing that she or he circulated an initiative petition and that each signature on the petition was signed in the circulator's presence are not overbroad.

3. Constitutional Law: Initiative and Referendum: Statutes. Statutes prohibiting one from falsely swearing do not impinge on the rights embodied in Neb. Const. art. I, §§ 5, 19, and 22, and art. III, §§ 1, 2, and 4.

4. Statutes. While repeals of statutes by implication are not favored and a statute will not be considered so repealed unless the repugnancy between the new enactment and the former statute is plain and unavoidable, where such a repugnancy exists, the new enactment will be deemed to have repealed the former statute by implication.

5. Statutes: Legislature: Intent. A construction of a statute which, in effect, repeals another statute will not be adopted unless such a construction is made necessary by the evident intent of the Legislature.

6. Statutes. A legislative act which is complete in itself and is repugnant to or in conflict with a prior law repeals the prior law by implication to the extent of the repugnancy or conflict.

7. Trial: Waiver. While a party in a case tried to a court without a jury is entitled to a ruling on a proffered objection, one who does not insist on such a ruling waives the objection.

8. Trial: Evidence: Presumptions. In a case tried to a court without a jury, there is a presumption that in reaching its decision the trial court considered only evidence that is competent and relevant.

9. Aiding and Abetting. Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor. Mere encouragement or assistance is sufficient.

10. Aiding and Abetting. Aiding and abetting involves some participation in the criminal act or some conscious sharing in the criminal act, as in something that the accused wishes to bring about, in furtherance of the common design, either before or at the time that the criminal act is committed, and it is necessary that he seeks by his action to make it succeed.

11. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate 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.

12. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, the Supreme Court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence; only where evidence lacks sufficient probative force as a matter of law may the Supreme Court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

13. 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.

14. Convictions: Circumstantial Evidence. A criminal conviction may be based on circumstantial evidence.

15. Motions for New Trial: Evidence. Newly discovered evidence offered in support of a motion for new trial must be so potent that, by strengthening the evidence already offered, a new trial would probably result in a different verdict; the newly discovered evidence must be relevant and credible and not merely cumulative.

16. Motions for New Trial: Appeal and Error. A motion for new trial on the basis of newly discovered evidence is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

James Martin Davis and Martin J. Kushner, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

This is yet another case arising from the attempt to place on the 1986 general election ballot an initiative measure to amend the state Constitution so as to permit a state-run lottery. See, State v. Radcliffe, 228 Neb. 868, 424 N.W.2d 608 (1988); State v. Pappas, 228 Neb. 861, 424 N.W.2d 604 (1988); State v. Katzman, 228 Neb. 851, 424 N.W.2d 852 (1988); State v. Monastero, 228 Neb. 818, 424 N.W.2d 837 (1988).

Following a bench trial, the defendant in this case, Marc M. Fellman, was adjudged guilty of aiding, abetting, procuring, or causing another to falsely swear to a signature on an initiative petition, in violation of Neb.Rev.Stat. §§ 32-705 (Cum.Supp.1986) and 32-713 (Reissue 1984). He was thereafter sentenced to 2 years' probation, fined $2,000, and ordered to complete 300 hours of community service. His six assignments of error on appeal may be summarized as claiming that (1) §§ 32-705 and 32-713 are unconstitutional in a variety of respects, (2) the trial court erred in certain evidential rulings, (3) there was insufficient evidence to support the conviction, and (4) the trial court erred in failing to grant a new trial for newly discovered evidence. We affirm.

II. FACTS

On July 2, 1986, Fellman, a part owner of an Omaha, Douglas County, Nebraska, business known as Lottery Consultants of Nebraska, Inc., met in Lincoln, Lancaster County, Nebraska, with a group of models who had been hired to circulate lottery initiative petitions in the latter city. These models returned their petitions to Fellman at about 4 p.m. the same day. Fellman had two of the models, Vicki Shoemaker and Anne Steyer, sign this group of petitions as the circulators thereof, despite the fact that they had not circulated all they so signed. Nor were these signatures notarized in the presence of Shoemaker or Steyer.

At trial, Shoemaker identified two documents as petitions that Fellman had her sign as circulator on July 2, 1986. These documents now bore Kimberly Peters' signature as circulator over Shoemaker's signature, which had been "whited out," or obliterated, apparently with typewriter correcting fluid.

Steyer identified four documents as petitions Fellman had her sign as circulator, again on July 2, 1986. At trial, three of these documents also bore Peters' signature as circulator over Steyer's signature, which had been similarly whited out.

Lisa Harley, another model who circulated petitions on July 2, 1986, also identified a document as one she had circulated but had not signed. At trial, this document bore Peters' July 3, 1986, signature as circulator.

Angelia Rohwer circulated petitions given to her at Fellman's Omaha business address on July 2 and 3, 1986, and returned them to Fellman's place of business on July 3, 1986, leaving the circulator signature line unsigned. At trial, Rohwer identified one of these petitions, which then bore Peters' signature as circulator.

Fellman also had asked Michelle Penix to distribute lottery petitions. She returned those she had circulated to Fellman in a south Omaha building and signed them as circulator. At trial, Penix identified two documents as petitions she had circulated and so signed, which then bore Peters' signature as circulator.

On July 3, 1986, Kathy Paradise, a part-time employee of Walter H. Radcliffe, one of the petition drive organizers, was working on lottery-related activities in Lincoln. Fellman, carrying a manila envelope, went to the office where Paradise was working, and she showed him to then Sen. James E. Pappas' office in the State Capitol Building.

Peters, who served as Pappas' administrative assistant, had become a bonded circulator and had told Radcliffe that she would sign, as circulator, lottery petitions that she had in fact not circulated. Radcliffe telephoned Peters on July 3, 1986, saying that he was sending someone over with some petitions for her to so sign. She remembered that Paradise and a man she could not identify brought petitions to Pappas' office for her to sign as circulator and to be notarized. Peters signed petitions which had been circulated but not signed by a circulator and used typewriter correcting fluid to white out the circulator's signature on other petitions, writing in her own name as circulator. She specifically admitted signing as circulator the petitions previously identified by Shoemaker, Steyer, Harley, Rohwer, and Penix.

Allen J. Beermann, Secretary of State of the State of Nebraska, testified that the petitions identified by Shoemaker, Steyer, and Harley were among those filed with his office shortly before closing time on July 3, 1986.

III. ANALYSIS

1. CONSTITUTIONAL ISSUES

In connection with the first summarized assignment of error, Fellman makes a multifaceted constitutional challenge. He asserts that the scheme embodied in Neb.Rev.Stat. §§ 32-705 through 32-713 (Reissue 1984 & Cum.Supp.1986) is overbroad, thereby violating the 1st, 5th, 9th, and 14th amendments to the Constitution of the United States; that the scheme restricts and chills the initiative process, thereby violating the rights guaranteed by Neb. Const. art. I, §§ 5, 19, and 22, and art. III, §§ 1, 2, and 4; and that the...