State v. Johns
| Decision Date | 22 September 1989 |
| Docket Number | No. 88-581,88-581 |
| Citation | 233 Neb. 477,445 N.W.2d 914 |
| Parties | STATE of Nebraska, Appellee, v. Gary W. JOHNS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the Supreme 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 finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
2. Prior Convictions: Habitual Criminals. This state may establish whatever procedural requirements it deems necessary for processing challenges to prior convictions in habitual criminal proceedings.
3. Prior Convictions: Habitual Criminals: Appeal and Error. A challenge to a prior conviction may only be raised in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid, and not in habitual criminal proceedings.
Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, for appellant.
Robert M. Spire, Atty. Gen., and Elaine A. Catlin, Lincoln, for appellee.
Gary W. Johns appeals both a Douglas County District Court jury verdict finding him guilty of felony theft by receiving stolen property of the value of $800, and the trial court's finding that he is a habitual criminal.
Johns was sentenced to not less than 20 nor more than 30 years' imprisonment. We affirm.
The defendant was charged under Neb.Rev.Stat. § 28-517 (Reissue 1985), which provides that "[a] person commits theft if he receives, retains, or disposes of stolen movable property of another knowing that it has been stolen, or believing that it has been stolen, unless the property is received, retained, or disposed with intention to restore it to the owner." If the property has a value of not less than $300, but not over $1,000, the offense is a Class IV felony, carrying a penalty of up to 5 years' imprisonment. Neb.Rev.Stat. §§ 28-105 and 28-518(2) (Reissue 1985).
In his appeal, Johns alleges two assignments of error: (1) that the evidence was insufficient to convict him and (2) that the trial court erred in finding him to be a habitual criminal.
In reviewing a criminal conviction, it is not the province of the Supreme 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 finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
Citation omitted.) State v. Andersen, 232 Neb. 187, 191, 440 N.W.2d 203, 209 (1989).
Taking the view most favorable to the State, a jury could conclude that the State proved the following facts beyond a reasonable doubt.
Mark Trustin's residence in Omaha, Douglas County, Nebraska, was burglarized between the hours of 3 and 8 p.m. on December 22, 1987. Entry was gained through the back door by breaking the door's glass. A portable television set, a videocassette recorder, and a shotgun, the double-barrel of which was enclosed by a canvas cover with Trustin's name printed on it, were taken. The value of the items stolen totaled $800.
At approximately 7:09 on that same evening, Sharri Fletcher, a police officer employed by the Omaha Police Division, observed a brown station wagon with expired license plates being driven near 52nd Street and Kansas Avenue in Omaha. When Fletcher attempted to stop the vehicle, the station wagon driver tried to elude her. A short chase ensued, during which the station wagon reached speeds of up to 55 miles per hour. The station wagon crashed into a tree. Abandoning the vehicle and stolen property and leaving the key in the ignition and the motor running, the driver fled on foot. Fletcher pursued the driver, but was unable to apprehend him. The policewoman, who at times during the chase came within 10 to 15 feet of the driver, testified that the fleeing driver matched Johns' description.
When Police Officer W. David Dussetschleger arrived at the accident scene about 7:12 p.m. to offer assistance, he turned the key in the ignition, stopping the motor. Since the station wagon and stolen goods were abandoned, Dussetschleger inventoried the vehicle for valuables and found Trustin's stolen property on a rear seat in the station wagon. The stolen property was covered with a plastic tarp. Two latent fingerprints, later identified as those of the defendant, were obtained from the bottom of the television set.
Through a license plate check and additional investigation, police discovered that the station wagon had been recently purchased by the defendant's mother, with whom the defendant lived. There was evidence that the defendant had borrowed and was using the vehicle on the night in question. There was also evidence that there was only one key to the station wagon and that, when not in use, it was kept in the home where Johns lived.
With respect to his first assignment of error, Johns points to Fletcher's inability to positively identify him at trial. Johns further argues that John More, the crime laboratory technician who testified regarding the identification of the fingerprints found on the television set, should be discredited because More had earlier characterized several points of identification differently in a deposition than he did at trial. Finally, Johns argues that the foregoing, combined with the testimony of several witnesses that the defendant was with them on December 22 and that the vehicle was not operative, demonstrates that the evidence is insufficient to convict him.
The defendant is essentially asking this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, and weigh the evidence. Such is not the province of the Supreme Court but, rather, the province of the fact finder, in this case the jury. State v. Andersen, supra. It is apparent from the verdict that the jury did not believe Johns' alibi defense or that the station wagon was not operative. Even though the evidence in large part was circumstantial, it is sufficient to support the jury's guilty verdict. See State v. Durst, 232 Neb. 639, 441 N.W.2d 627 (1989).
In his second assignment of error, Johns argues that under Gonzales v. Grammer, 848 F.2d 894 (8th Cir.1988), his two...
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...the State need only establish that at the time of the prior conviction, the defendant had or waived counsel. State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989). This rule is equally applicable to use of a prior conviction as proof that the defendant is a convicted The record in this case s......
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