State v. Greer

• Decision Date: 13 October 1998
• Docket Number: No. A-97-596,A-97-596
• Parties: STATE of Nebraska, Appellee, v. Dwayne GREER, Appellant.
• Court: Nebraska Court of Appeals

Page 654

586 N.W.2d 654

7 Neb.App. 770

STATE of Nebraska, Appellee, v. Dwayne GREER, Appellant.

No. A-97-596.

Court of Appeals of Nebraska.

Oct. 13, 1998.

Syllabus by the Court

1. Burglary. A breaking is an essential element of burglary.

2. Jury Instructions: Burglary. When burglary is charged, a jury should be instructed that in addition to the use of physical force, however slight, the removal of an obstacle to entry is necessary to find a breaking.

3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a trial court's refusal to give a requested jury instruction, an appellant has the burden to establish that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

4. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit as a basis for finding probable cause to issue a search warrant, the question is whether, under the totality of the circumstances, the issuing magistrate had a "substantial basis" for finding that the affidavit established probable cause.

5. Search Warrants: Affidavits: Probable Cause: Appeal and Error. An appellate court's after-the-fact scrutiny of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts.

6. Records: Appeal and Error. It is the duty of the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed.

7. Search Warrants: Affidavits: Probable Cause: Appeal and Error. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded upon articulable facts. In evaluating probable cause for the issuance of a search warrant, the magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity of and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of the reviewing court is to ensure that the issuing magistrate had a substantial basis for determining that probable cause existed.

8. Search and Seizure: Search Warrants: Presumptions: Proof. A search pursuant to a warrant is presumed to be valid, and if the police act pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable.

9. Trial: Joinder: Proof: Appeal and Error. A defendant opposing joinder of charges has the burden of proving that joinder will be prejudicial to the defendant.

10. Trial: Joinder: Proof. A defendant has no constitutional right to a separate trial. The right is statutory and depends on a motion for a showing that prejudice will result from a joint trial.

11. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion.

12. Constitutional Law: Double Jeopardy. The constitutional prohibition against double jeopardy not only protects against a second prosecution for the same offense after acquittal or conviction, but also protects against multiple punishments for the same offense.

13. Double Jeopardy: Legislature. The multiple punishment prong of the double jeopardy bar seeks to ensure that the total punishment imposed on a defendant does not exceed that authorized by the Legislature.

14. Double Jeopardy: Lesser-Included Offenses: Convictions: Sentences. When a defendant has been convicted of both a greater and a lesser-included offense, vacation of the sentence on the lesser charge cures the double jeopardy violation.

15. Criminal Law: Statutes: Lesser-Included Offenses: Proof. In determining what constitutes lesser-included offenses, the statutory elements approach involves a textual comparison of criminal statutes to determine if each statute contains at least one element not contained in the other statute. Thus, a lesser-included offense is one which is necessarily established by proof of the greater offense, or stated another way, to be a lesserincluded offense, the elements of the lesser offense must be such that it is impossible to commit the greater offense without at the same time having committed the lesser offense.

16. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

17. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution, a defendant must show that counsel's performance was deficient and that such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

18. Constitutional Law: Double Jeopardy: Statutes. The constitutional prohibition against double jeopardy does not apply where two separate and distinct crimes are committed as the result of one and the same act, because the constitutional proscription is directed to the identity of the offense and not to the act. Consequently, multiple punishments can be imposed for the same act without violating the double jeopardy provision of the state and federal Constitutions, where imposition of the multiple punishments is specifically authorized by state statute.

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

20. Criminal Law: Statutes: Sentences. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically held otherwise.

Robin W. Hadfield, of Nebraska Commission on Public Advocacy, for appellant.

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

HANNON, IRWIN, and INBODY, JJ.

INBODY, Judge.

I. INTRODUCTION

Dwayne Greer appeals from his convictions for two counts of burglary; four counts of use of a weapon to commit a felony; and one count each of first degree sexual assault, second degree assault, and first degree false imprisonment. Greer also appeals the sentences imposed thereon.

II. STATEMENT OF FACTS

In the summer of 1995, A.L. was living at 1700 B Street, apartment No. 1, in Lincoln, Nebraska, with two other young women, H.S. and P.S. The apartment was located in an old house that had been converted into five apartments. A.L., H.S., and P.S.' apartment occupied part of the main floor and part of the basement of the converted house.

In the summer months, sometime before August 1995, A.L. and P.S. met Greer when he was helping some people move out of one of the other apartments in the converted house. In August, Greer came to A.L., H.S., and P.S.' downstairs apartment door at 2 or 3 o'clock in the morning. P.S. and H.S. answered the door. Greer identified himself as "Dwayne" and asked where the girl with the maroon car was. P.S. and H.S. knew that Greer was asking for A.L., because she drove a small maroon car. H.S. and P.S. informed Greer that A.L. was not there, and Greer left. The next morning, P.S. and H.S. discovered that their apartment had been burglarized. A boom box stereo, cellular telephone, and wallet belonging to H.S. were missing. Between 11 p.m. and 2 a.m. the night after the burglary, Greer was outside of the apartment again.

On November 3, 1995, in the early morning hours, A.L. reported that she was awakened by an intruder who sexually assaulted her at knifepoint. A.L. was able to provide police with the following description of her assailant: a black male, medium to stocky build, wearing dark clothing, including a dark ski mask and a dark sweatshirt and lighter-colored cloth gloves. During the assault, A.L. was stabbed in the right thigh, and A.L.'s assailant left bloody shoe prints at the scene.

Just prior to the report of the sexual assault to police, at approximately 4:35 a.m., Lincoln police officer Chad Barrett observed a black male approximately 5'11" to 6'0" tall and weighing approximately 185 pounds running in the area of 10th and G Streets. This area is about 16 blocks away from 1700 B Street. The man was wearing a dark-colored hooded sweatshirt and dark-colored sweat pants or jeans. The male ran to an apartment complex at 919 G Street.

After police officers were dispatched to 1700 B Street to investigate the reported sexual assault, Officer Barrett was ordered to set a perimeter around the 919 G Street apartment complex to observe individuals entering or exiting the complex. Officer Barrett began contacting individuals living in the apartment complex, specifically apartment No. 1. Officers were informed that there were no black males living in the complex but that there was a black male who had lived across the alley in a complex located at 920 F Street, which was just south of 919 G Street. Upon learning this, officers contacted the party living in apartment No. 1 at 920 F Street, a black female named "Brenda Greer."

Officer Barrett continued to observe the complex at 920 F Street, and apartment No. 1 in particular, for another 45...