State v. Goodon

• Decision Date: 01 February 1985
• Docket Number: No. 84-546,84-546
• Citation: 219 Neb. 186,361 N.W.2d 537
• Parties: STATE of Nebraska, Appellee, v. Ben GOODON, Appellant.
• Court: Nebraska Supreme Court

Page 537

361 N.W.2d 537

219 Neb. 186

STATE of Nebraska, Appellee, v. Ben GOODON, Appellant.

No. 84-546.

Supreme Court of Nebraska.

Feb. 1, 1985.

Syllabus by the Court

Convictions: Appeal and Error. In determining the sufficiency of 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 trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

Earl D. Ahlschwede of Ahlschwede & Truell, Grand Island, for appellant.

Paul L. Douglas, Atty. Gen., and Timothy E. Divis, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, Ben Goodon, was charged in the county court for Hall County, Nebraska, with assault in the third degree in violation of Neb.Rev.Stat. § 28-310(1) (Reissue 1979). After trial to the court Goodon was found guilty as charged and was fined $100. On appeal to the district court for Hall County, the conviction and fine were affirmed. It is from that conviction and fine that Goodon now appeals to this court. Goodon's assignment of error is essentially that the evidence was insufficient to sustain the conviction. We believe that the assignment is without merit and that the conviction and fine should be affirmed.

Section 28-310(1) provides as follows: "A person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Threatens another in a menacing manner." (Emphasis supplied.) Either act is sufficient to constitute a violation of the statute, and no degree of bodily injury is required under subpart (a).

The evidence discloses that Goodon and the complainant apparently lived together until approximately August of 1983, when they separated. Complainant testified that on the night of February 11, 1984, Goodon came to her apartment, initiated an argument, and, during the course of the argument, pushed her onto her bed. He further threatened to kill her if he caught her with another man.

The complainant further testified that sometime after this argument, while she was crossing the street, Goodon drove his car so close to her that he barely hit the back of her leg. The complainant then started running across a parking lot; Goodon drove his car between her and the lounge where she was heading, got out of his vehicle, grabbed her by her collar, shook her, and again said that he would kill her if he caught her with another man or if she went into the lounge. Goodon denied any contact with the complainant. That matter, of course, was a question of fact to be determined by the trial court, and will not be reconsidered by us on appeal. We have frequently and regularly held that in determining the sufficiency of 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 trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. See, State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984); State v. Jones, 217 Neb. 435, 350 N.W.2d 11 (1984); State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984); State v. Johnsen, 197 Neb. 216, 247 N.W.2d 638 (1976); State v. Brown, 195 Neb. 321, 237 N.W.2d 861 (1976); State v. Spidell, 194 Neb. 494, 233 N.W.2d 900 (1975)...