State v. Jacobs

• Decision Date: 07 August 1987
• Docket Number: 86-855,Nos. 86-854,s. 86-854
• Citation: 410 N.W.2d 468,226 Neb. 184
• Parties: STATE of Nebraska, Appellee, v. Sam JACOBS, Appellant. STATE of Nebraska, Appellee, v. Ryan JACOBS, Appellant.
• Court: Nebraska Supreme Court

Page 468

410 N.W.2d 468

226 Neb. 184

STATE of Nebraska, Appellee, v. Sam JACOBS, Appellant.

STATE of Nebraska, Appellee, v. Ryan JACOBS, Appellant.

Nos. 86-854, 86-855.

Supreme Court of Nebraska.

August 7, 1987.

Syllabus by the Court

1. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.

2. Venue: Appeal and Error. A motion to change venue under Neb.Rev.Stat. § 29-1301 (Reissue 1985) is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof.

3. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

4. Venue: Juries. To secure a change of venue on the basis of pretrial publicity, the defendant must show that the publicity has made it impossible to secure a fair and impartial jury.

5. Venue. The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.

6. Juror Qualifications. A juror need not be totally ignorant of the facts and issues involved; it is sufficient if the juror can lay aside his or her impressions or opinion and render a verdict based on the evidence presented in court.

7. Juror Qualifications. Under the provisions of Neb.Rev.Stat. § 25-1636 (Reissue 1985), it is not a "cause of challenge that a juror has read in the newspapers an account of the commission of a crime with which a prisoner is charged, if such juror shall state on oath that it is the belief of said person that he or she can render an impartial verdict according to the law and the evidence; and the court shall be satisfied as to the truth of such statement."

8. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1985) prohibits the introduction of evidence of other crimes, wrongs, or acts to prove one's character or to show that one acted in conformity therewith, but makes such evidence admissible for other purposes, including "proof of motive."

9. Rules of Evidence. Under the provisions of Neb.Rev.Stat. § 27-403 (Reissue 1985), relevant evidence is to be excluded if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice.

10. Evidence: Other Acts. Balancing the need for evidence of other crimes, wrongs, or acts against the possible resulting prejudice is within the discretion of the trial court.

11. Motions for Mistrial: Appeal and Error. The determination to declare a mistrial is a matter entrusted to the sound discretion of a trial court, whose ruling will be upheld absent an abuse of that discretion.

12. Motions for Mistrial. A mistrial is properly declared when an event occurs during the course of a trial which is of such a nature that its damaging effects cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial.

13. Criminal Law: Evidence: Proof. To establish an alibi, a defendant must show that at the relevant time he or she was so far removed from the scene of the crime as to render it impossible for him or her to be the guilty party.

14. Convictions: Appeal and Error. In determining whether evidence is sufficient in a jury trial to sustain a conviction, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury.

15. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict.

16. Convictions: Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, viewed as a whole, the evidence establishes guilt beyond a reasonable doubt; the State is not required to disprove every hypothesis but that of guilt.

17. Trial: Evidence: Motions to Dismiss: Appeal and Error. Denial of a criminal defendant's motion to dismiss is without error where the State introduces competent evidence which, if believed by the jury, is sufficient to establish all elements of the crimes charged against the defendant.

Stephen A. Scherr, of Whelan, Foote & Scherr, P.C., Hastings, for appellants.

Robert M. Spire, Atty. Gen., and James H. Spears, Lincoln, for appellee.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.

CAPORALE, Justice.

A jury found defendant-appellant Sam Jacobs guilty of arson in the second degree in violation of Neb.Rev.Stat. § 28-503 (Reissue 1985), and of criminal mischief in violation of Neb.Rev.Stat. § 28-519 (Reissue 1985). The same jury found Sam Jacobs' son, defendant-appellant Ryan Jacobs, guilty of second degree arson. In accordance with the jury's verdicts, the district court adjudged each defendant guilty and sentenced Sam Jacobs to probation for a period of 3 years on the arson conviction and imposed a $250 fine on the criminal mischief conviction. Ryan Jacobs was sentenced to 3 years' probation. On appeal to this court each defendant assigns as errors the trial court's (1) failure to sustain the plea in abatement made by each defendant, (2) failure to grant a change of venue to each defendant, (3) admission of testimony concerning Sam Jacobs' prior conduct, (4) failure to grant a mistrial, and (5) failure to find the evidence insufficient to support the jury's findings of guilt. We affirm.

On Friday evening, August 2, 1985, Sam Jacobs got into a fight with Clinton Wreszinski and Kevin Lukasiewicz. Sam Jacobs sustained some facial cuts, was treated at a hospital, and wanted charges brought against Wreszinski and Lukasiewicz. William Steele, a policeman for the city of St. Paul, located in Howard County, told Sam Jacobs that after the police finished gathering information on the fight, they would turn the matter over to the county attorney, who would decide if there was a basis upon which to press charges.

Lukasiewicz was a close friend of Scott and Ricky Klinginsmith and lived with their brother, Steve Klinginsmith. Ricky Klinginsmith owned a mobile home located in Howard County and lived there with Jeff Nowak. The mobile home was located 2.9 miles from Sam Jacobs' hog farm, a distance which could be traveled in 4 minutes and 15 seconds if the driver remained within the posted speed limits. Scott Klinginsmith lived with his parents, but Ricky Klinginsmith had given Scott permission to stay at the mobile home with Nowak while Ricky was in Minnesota.

On Saturday, August 3, 1985, Scott Klinginsmith and Nowak left the mobile home around 9 p.m. Because they did not have a key, they did not lock the front door. They drove Nowak's pickup truck and left Scott Klinginsmith's 1973 maroon Pontiac Grand Prix parked about 40 yards away.

Lukasiewicz owned a 1977 Pontiac Grand Prix which also was maroon and which Sam Jacobs knew Lukasiewicz had been driving on the night of the fight. The Lukasiewicz and Klinginsmith vehicles were of the same body style but perhaps differed in the configuration of the headlights, grill, and taillights. In addition, the Lukasiewicz automobile, unlike the Klinginsmith automobile, had a removable glass roof. The Lukasiewicz automobile displayed an "in transit" sticker.

According to his girlfriend, Ryan Jacobs left her house because of a telephone call he received around 9:15 p.m. that Saturday from his mother. Sam Jacobs wanted Ryan Jacobs home "because of the incidents that happened Friday night." When Ryan Jacobs arrived at home, Sam Jacobs asked him to change his clothes, purportedly to go burn musk thistles and shoot rats. Sam and Ryan Jacobs then left in the pickup truck with a rifle and a 4- to 5-gallon can filled with a mixture of diesel fuel and gasoline. A short while later, at 9:45 p.m., Ricky Klinginsmith's mobile home was reported to be on fire. About 10 minutes after that, Ryan Jacobs was reported to be the victim of severe burns at the Jacobs' farm.

Additionally, Scott Klinginsmith's 1973 maroon Pontiac Grand Prix was found with a smashed windshield and driver's side window. Some blood was found on the driver's side rearview mirror.

Somewhere between 1:45 and 2 a.m., a few hours after the fire, Sheriff Bryer and others were at Sam Jacobs' farm, where Sam Jacobs took them out to a garbage or fire pit. This pit was an earthen hole about 4 feet by 10 feet and about 4 feet deep, which was used for burning garbage. Sam Jacobs told the sheriff that at about 9 p.m., Ryan Jacobs had dumped 4 or 5 gallons of gasoline-diesel fuel mixture into the pit, ignited it, and then fell into the pit at its east wall and came out on the same side. Sam Jacobs said he himself was burned while helping Ryan Jacobs out of the pit. According to Sam Jacobs, he rolled Ryan Jacobs in some grass or weeds near the pit in an effort to extinguish the flames, and he had ripped off Ryan Jacobs' clothes and then threw them into the pit.

Robert Burke, a deputy State Fire Marshal, was of the opinion that there had not been a recent fire in the pit because fresh paper, paper bags, Kleenex, and dried weeds were found on top of the ashes and debris left by a previous fire.

The St. Paul chief of police was also of the opinion that there had been no recent burning in the pit...