State v. Harig

• Decision Date: 06 June 1974
• Docket Number: No. 39223,39223
• Citation: 192 Neb. 49,218 N.W.2d 884
• Parties: STATE of Nebraska, Appellee, v. Robert A. HARIG, Appellant.
• Court: Nebraska Supreme Court

Page 884

218 N.W.2d 884

192 Neb. 49

STATE of Nebraska, Appellee, v. Robert A. HARIG, Appellant.

No. 39223.

Supreme Court of Nebraska.

June 6, 1974.

Syllabus by the Court

1. When evidence is conflicting regarding a motion for the suppression of evidence, the decision upon the motion is for the court and will not be reversed on appeal in the absence of an abuse of discretion.

2. After a jury has considered the evidence and returned a verdict of guilty, that verdict on appeal may not, as a matter of law, be set aside for insufficiency of evidence, if the evidence sustains some rational theory of guilt.

3. The essential allegations which an information must contain for a charge under the Habitual Criminal Act are that said person has been (1) twice previously convicted of crime, (2) sentenced, and (3) committed to prison for terms not less than 1 year each.

4. Article I, section 11, of the Constitution of Nebraska, requires that an information must inform the accused with reasonable certainty of the charge against him so that he may prepare his defense thereto and be enabled to plead the judgment thereon as a bar to a later prosecution for the same offense.

5. An accused is entitled to be represented by counsel at all 'critial stages' of by counsel at all 'critical stages' of the occasion upon which he is sentenced.

6. Under the Sixth Amendment to the United States Constitution, if a waiver of the right to counsel has been properly made at the arraignment at which a plea of guilty was entered, the trial court is not required at the subsequent sentencing proceeding to again apprise the defendant of his right to counsel, so long as nothing has intervened between the arraignment and the sentencing that should cause the waiver at the arraignment to be ineffective for the purposes of the sentencing proceeding.

7. Where a defendant is simultaneously convicted of more than one felony charge on the same information, and the Habitual Criminal Act is applicable, such defendant may be sentenced separately for each underlying conviction, each sentence being enhanced under the Habitual Criminal Act.

8. Where the punishment of an offense created by statute is left to the discretion of the court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

9. The matter of the granting of a continuance in a criminal case is particularly within the province and the discretionary judgment of the trial court.

10. The issue of excessiveness of pretrial bail is not reviewable after a conviction and sentence.

T. Clement Gaughan, Public Defender, Richard L. Goos, Chief Deputy Public Defender, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Warren D. Lichty, Jr., Asst. Atty. Gen., Robert G. Avey, Special Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

BRODKEY, Justice.

In a multicount information, defendant was respectively charged with: (1) Burglary; (2) unlawful possession of a burglary tool; and (3) possession of a firearm by a felon. In addition, the State charged the defendant with being an habitual criminal. After trial, the defendant was found guilty upon each court; and a separate hearing was thereafter held with respect to the habitual criminal charge under section 29--2221, R.S.Supp., 1972. The court found the defendant to be an habitual criminal and thereupon proceeded to sentence him to a term of not less than 15 nor more than 20 years on each of the three felonies, said sentences to run concurrently. Defendant appeals those convictions and sentences to this court. We affirm.

By way of general factual background for the incidents involved in this case, it appears that at or about 2:30 a.m. on November 12, 1972, a Lincoln, Nebraska, police department helicopter pilot was informed by police radio of an ADT alarm at the Western Gun and Supply Company. The helicopter arrived over the premises of Western Gun about 20 seconds later and observed a 'station wagon type' vehicle sitting at the southeast corner of the building. As the helicopter approached, the automobile drove away, the pilot observing that its right rear taillight was out and that there appeared to be some plastic coverings on the rear of the vehicle. The helicopter pilot kept the vehicle in his observation at all times, and radioed directions for a police for to intercept the station wagon. The station wagon was stopped by the police vehicle, and the defendant and one Martyn Youngstrom were found to be occupants in the station wagon. Although the testimony was conflicting as to whether the driver of the automobile consented to a search of his vehicle, it is clear that a search was made, which yielded two hand guns and a crowbar. Defendant was subsequently arrested, charged, tried, and sentenced, as set out above. Additional facts of this case will be discussed under the particular assignments of error hereinafter set out.

Among the many errors assigned by defendant is that the trial court erred in overruling his motion to suppress certain evidence of the State. Defendant asserts that no permission was obtained from him by the police before they searched his automobile and and obtained the guns and crowbar previously referred to. There was, however, testimony by one of the arresting officers to the effect that the defendant did give consent to the search of his automobile. Obviously the evidence on this point was conflicting. In such situation, the decision upon the motion to suppress is for the court, and will not be reversed on appeal in the absence of an abuse of discretion. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974). There having been no showing of an abuse of discretion, we hold that no error was committed in that regard.

The defendant asserts that the evidence in this case is insufficient to support the verdict of guilt on each of the three felonies involved. It is clear from the record that there was more than sufficient evidence to submit to the jury for its determination of guilt on the charges of possession of a burglary tool and also upon the charge of possession of a firearm. No further discussion is necessary with reference to those two charges.

Well shall, however, discuss the claim of the defendant that the evidence was insufficient with respect to the charge of burglary, particularly with respect to defendant's claim that there was no evidence of an entry by the defendant into the building in question. We add, in passing, that the evidence is clear there was an unlawful breaking of the building, by virtue of the testimony of presence of jimmy marks on a door at the premises; and also the testimony of an FBI agent who examined the crowbar obtained as evidence and testified as to the kind and size of the marks, and also with respect to the paint samples which were taken from the door in question. This evidence as to the breaking was submitted to the jury under proper instructions, and its verdict necessarily reflects its conclusion that there was breaking in this case. Defendant does not seriously attack this conclusion in his brief. Turning to the question as to the sufficiency of evidence to show that defendant in fact did enter the Western Gun and Supply Company building, the witness, Donald Nielsen, an employee of Notifier Corporation which installed the burglar alarm or security system in the Western Gun and Supply Company building, testified that there were two types of alarm systems in the building, one being a perimeter system having contacts with the doors of the building, and the other being a space type system, designed to detect movements within the building. He testified that if the door had somehow seen by-passed as part of the perimeter system, then the only way to trigger the alarm would have been either by entering the area protected by the space type system or by violating another perimeter contact that had not been by-passed. Lee Mason, the assistant store manager of Western Gun, testified that he believed that on November 11, 1972, the jimmied door did not have a 'hot contact' with the security alarm system, although he did admit on cross-examination that he was not absolutely certain this was true. It was the theory of the State from the testimony of these two witnesses, that defendant must have entered the building in order to trigger the alarm and therefore there was sufficient evidence of entry. The defendant argues to the contrary that the triggering of the alarm could be accounted for under the equally reasonable theory that the jimmied door had been connected with the alarm system. The rule is that after a jury has considered all the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of evidence, if the evidence sustains some rational theory of guilt. State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974); State v. Lewis, 184 Neb. 111, 165 N.W.2d 569 (1969). In this case, the jury could have found that the alarm system of the Western Gun building could only have been triggered by someone actually entering the building. We therefore hold that there was sufficient evidence of an entry to sustain the verdict of guilt on the burglary charge.

We next turn our attention to a consideration of the errors alleged by defendant in connection with the habitual criminal proceedings following the verdicts returned by the jury and to the sentencing thereafter by the court. As previously stated, the amended information filed in this case, after setting out the three substantive offenses on which the defendant was tried in this action, also incorporated allegations to the effect that the defendant was an habitual criminal under the Nebraska Habitual Criminal Act. Particularly, it alleged that the defendant had been convicted...