State v. Greer, S-97-596.

• Decision Date: 09 July 1999
• Docket Number: No. S-97-596.,S-97-596.
• Citation: 257 Neb. 208,596 N.W.2d 296
• Parties: STATE of Nebraska, Appellee, v. Dwayne GREER, Appellant.
• Court: Nebraska Supreme Court

596 N.W.2d 296

257 Neb. 208

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

No. S-97-596.

Supreme Court of Nebraska.

July 9, 1999.

James R. Mowbray and Kelly S. Breen, of the Nebraska Commission on Public Advocacy, and, on brief, Robin W. Hadfield, Lincoln, for appellant.

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

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

INTRODUCTION

Dwayne Greer appealed his convictions on 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. The Nebraska Court of Appeals in State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654 (1998), affirmed Greer's convictions for first degree sexual assault and three counts of use of a weapon, but reversed the convictions for the two burglary counts and corresponding use of a weapon charge and remanded those counts for new trial. It also vacated the sentences for second degree assault and first degree false imprisonment and remanded for resentencing on those counts. We granted the State's petition for further review.

STATEMENT OF FACTS

State v. Greer, supra, includes a full factual background of this case. The issues on further review are limited to the jury instruction on the burglary counts and the sentences imposed on the convictions for second degree sexual assault and first degree false imprisonment, and therefore only the facts pertaining to those issues will be related in detail here. Greer was charged in a nine-count information filed in the district court for Lancaster County, Nebraska. In count I, the State alleged that on or about August 10, 1995, Greer "did willfully, maliciously, and forcibly break and enter any real estate or any improvements erected thereon, located at 1700 `B' Street, Lincoln, Lancaster County, Nebraska, with the intent to commit any felony or with the intent to steal property of any value," in violation of Neb. Rev.Stat. § 28-507(1) (Reissue 1995). In count IV, Greer was charged with the same offense, allegedly committed at the same premises on November 3. The remaining offenses with which Greer was charged were also alleged to have occurred on November 3.

The premises located at 1700 B Street consisted of an old house which had been converted into five apartments. In 1995, three women occupied apartment No. 1, which included part of the main floor and part of the basement of the house. Sometime during the summer of 1995, but prior to August, A.L., one of the women who lived in apartment No. 1, talked briefly with three men who were helping other tenants of the building move. At trial, A.L. identified Greer as one of these men.

At approximately 2:30 a.m. on August 10, 1995, H.S. and P.S., the other two residents of apartment No. 1, answered a knock on the door of their apartment. The caller was an African-American man who identified himself as "Dwayne" and inquired about the woman "with the little red car." The women responded that A.L., who owned a maroon car, was not home. H.S. testified that at this point in time, all doors to the apartment were closed and locked.

Later the same day, H.S. discovered that several items of personal property belonging to her were missing from the apartment. These included a portable stereo, a cellular telephone, and a wallet. H.S. did not observe any signs of forced entry. H.S. reported the missing items to the police on the same day. The wallet was found a few blocks from the apartment, but the $20 it had contained had been removed. Subsequently, the cellular telephone was recovered during a search of an apartment where Greer and his wife resided, and a stereo matching the description of the one which H.S. had reported missing was recovered from a pawnshop where it had been pawned by Greer's wife.

Sometime between 1 and 2 a.m. on November 3, 1995, P.S. returned to the apartment after spending the evening with friends. A.L. was at the apartment when she arrived. P.S. expected a visitor and therefore left a door to the apartment unlocked. When the individual called to say he would not be coming over, P.S. went to bed without locking the door. A.L. retired at about the same time.

Later in the morning, A.L. was awakened by an African-American man standing by her bed. The man, who was wearing a ski mask, ordered her to go to another part of the apartment, where he sexually assaulted her at knifepoint and stabbed her right thigh. When the man left the apartment,

A.L. awakened P.S. and called the police. At approximately 4:35 a.m., about 8 minutes before a police officer received a call dispatching him to A.L.'s apartment in response to her report, this officer observed an African-American man purposefully running through a neighborhood approximately 16 blocks away from 1700 B Street. He reported this information to his sergeant. Later that morning, other officers encountered Greer in that neighborhood. They transported Greer to the police station for questioning, and when he refused their request to voluntarily give blood, saliva, and hair samples, they obtained a court order for such evidence. Forensic studies linked blood found on a pair of jeans which were seized from Greer's apartment to A.L. and identified Greer as the probable source of sperm that was present on a vaginal swab taken from A.L. following the assault. Following the presentation of evidence at Greer's trial, the jury was instructed that regarding the charge of burglary in count I, the elements of the State's case were as follows:

1. That the defendant, Dwayne Greer, did willfully, maliciously and forcibly break and enter real estate or any improvements erected thereon, located at 1700 "B" Street, Lincoln, Lancaster County, Nebraska;

2. That the defendant did so with the intent to commit any felony or with the intent to steal property of any value; and

3. That the defendant did so on or about August 10, 1995.

With regard to the burglary charge in count IV, the jury was instructed that the elements of the State's case were as follows:

1. That the defendant, Dwayne Greer, did willfully, maliciously and forcibly break and enter any real estate or any improvements erected thereon located at 1700 "B" Street in Lincoln, Lancaster County, Nebraska;

2. That the defendant did so with the intent to commit any felony or with the intent to steal property of any value; and

3. That the defendant did so on or bout November 3, 1995.

Further, the jury was instructed in instruction No. 9 that "`[b]reaking and entering' means entering a building by any act of physical force, however slight, including opening a door or unhooking a door fastener." The jury returned verdicts of guilty on all charges.

Greer received sentences of not less than 4 nor more than 5 years' imprisonment for the second degree assault conviction and for the first degree false imprisonment conviction, both of which were Class IV felonies at the time of sentencing. See, Neb.Rev.Stat. § 28-309 (Reissue 1995); Neb.Rev.Stat. § 28-314 (Reissue 1995). During the pendency of Greer's appeal, certain amendments to Neb.Rev. Stat. § 29-2204 (Cum.Supp.1998) became operative. As amended, this statute requires a court to fix the maximum and minimum limits of a sentence for a Class IV felony, and "the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term." Id.

Greer's assignments of error on appeal included the giving of an erroneous jury instruction on the burglary counts, the imposition of an illegal sentence for the offense of use of a weapon to commit second degree assault, and the imposition of excessive sentences. Relying upon State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994), the Court of Appeals found reversible error in the fact that the jury was not specifically instructed that the removal of an obstacle to entry is necessary in order for there to be a "breaking," as that term is used in the statute defining burglary. The Court of Appeals also held that although Greer's sentences for the second degree assault and first degree false imprisonment convictions were not an abuse of discretion at the time they were pronounced, they did not comply with § 29-2204 when its amendments became operative on July 1, 1998.

ASSIGNMENTS OF ERROR

On further review, the State assigns that the Court of Appeals erred in finding that the burglary instruction given was inadequate to state the elements of the offense and that the sentences imposed for the Class IV felonies must be vacated because of changes in the classification statutes.

STANDARD OF REVIEW

In an appeal based upon the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996). Whether a jury instruction given by a trial court is correct is a question of law. State v. Adams, 251 Neb. 461, 558 N.W.2d 298 (1997).

Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).

A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id.

ANALYSIS

JURY INSTRUCTION

The offense of burglary is defined in § 28-507(1), which states that "[a] person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any...