State v. Johnson, 89-1212

• Decision Date: 04 January 1991
• Docket Number: No. 89-1212,89-1212
• Citation: 236 Neb. 831,464 N.W.2d 167
• Parties: STATE of Nebraska, Appellee, v. Danny B. JOHNSON, Appellant.
• Court: Nebraska Supreme Court

Page 167

464 N.W.2d 167

236 Neb. 831

STATE of Nebraska, Appellee, v. Danny B. JOHNSON, Appellant.

No. 89-1212.

Supreme Court of Nebraska.

Jan. 4, 1991.

Syllabus by the Court

1. Verdicts: Appeal and Error. A verdict in a criminal case will not be disturbed on appeal if the evidence, viewed most favorably to the State, is sufficient to support that verdict.

2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of the Supreme Court to resolve conflicts in evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence; such matters are for the fact finder.

3. Rules of Evidence: Hearsay: Witnesses. As a general rule, the exercise of a privilege not to testify renders the witness unavailable to the extent of the scope of the privilege.

4. Rules of Evidence: Hearsay: Witnesses: Waiver. Ordinarily, it is necessary for the party seeking to invoke the spousal privilege exception to the hearsay rule to first call the witness and ask the questions, thereby compelling the spouse to make a formal claim of privilege. However, where it is obvious that a witness will not testify because the court has been informed that the privilege will not be waived, it is not necessary to go through the formalities of actually calling the witness.

5. Rules of Evidence: Hearsay. The fact that a wife's statement might tend to incriminate her husband, thereby exposing him to criminal prosecution and possible incarceration to the extent that the wife will lose the support previously provided by the husband, is not a statement against her pecuniary interest within the meaning of Neb.Rev.Stat. § 27-804 (Reissue 1989).

6. Rules of Evidence: Hearsay. As a general rule, the possibility that a statement might implicate the declarant in criminal activity is within the criminal liability exception to the hearsay rule.

7. Aiding and Abetting. Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor. Mere encouragement or assistance is sufficient.

8. Jury Instructions: Appeal and Error. All of the jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

9. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion on the part of the sentencing court.

Chris M. Arps, of Arps & Schirber Law Offices, for appellant.

Robert M. Spire, Atty. Gen., and Elaine A. Catlin, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Following a jury trial, defendant, Danny B. Johnson, was convicted of burglary, a Class III felony, in violation of Neb.Rev.Stat. § 28-507 (Reissue 1989). He was sentenced to a term with the Nebraska Department of Correctional Services for 18 months to 3 years.

The defendant has appealed, assigning as error (1) the insufficiency of the evidence, (2) the admission of hearsay statements, (3) the admission of statements made by defendant's wife in violation of the spousal privilege, (4) the giving of certain instructions, and (5) the excessiveness of the sentence. We affirm.

During the nighttime hours of February 12, 1989, Bellevue Transmission, located in Bellevue, Nebraska, was broken into and two vending machines containing candy, nuts, and coins were removed from the premises. Investigating officers found one broken-out window and one cut-out window through which access to the building could be had.

There had been a fresh snow that night, and the officers found two sets of footprints outside the building. One set of prints was made by hiking boots of the "wafflestomper" variety, and another set was made by rubber hunting or fishing boots. One of the officers followed these two sets of tracks, which paralleled each other. In the vicinity of a shed located at 2105 Fairview were impressions in the snow made by objects which the police officer said matched exhibits 11 and 13, a vending machine and a stand that were two of the items removed from Bellevue Transmission. The footprints were followed to the address of 2104 Tulip Lane. Matching footprints were then discovered leading from 2104 Tulip back to the scene of the break-in.

Police officers of the Bellevue Police Department then made contact with the people living at 2104 Tulip and were admitted to the house. Officer Monnier, who had been the officer following the tracks, noticed a pair of rubber boots standing by the door. He picked up one of the boots, and he looked at the print of the sole and visually matched it with one of the set of prints which he had followed. The boots appeared wet. Monnier asked to whom the boots belonged, and the defendant admitted they were his. Both the defendant and his brother Randy said there were no other boots in the house. The officers asked defendant for permission to look around the house, and it was denied. A decision was made by the officers to obtain a search warrant and to leave two officers at the residence to provide security.

The police checked with their communication center and discovered an outstanding felony warrant on defendant's brother Randy. While the officers were waiting for the search warrant, the defendant and his brother exited the premises fully dressed, wearing winter outerwear, and Randy was placed under arrest on the felony warrant. The defendant then "hurried" back into the house. During the wait for the warrant, Officer Monnier continued to monitor the premises from the outside and noticed lights being turned off and the defendant peeking out. The officers heard the clanging of what sounded like change hitting the floor in the garage.

Eventually, Officer Strachota appeared with the search warrant, and the officers knocked at the west door. It was a couple of minutes before anyone showed up to let them in. Strachota searched the residence while Monnier visited with the defendant's wife, Belinda Johnson. Over the objection of "hearsay, in violation of 27-505," Monnier was permitted to testify as to what Mrs. Johnson finally told him. Monnier's answer was that [s]he told me that Randy, who had been staying with Belinda and Danny at the house there, had left the residence that evening, approximately 8 p.m., and a short time later returned. And at that time Randy got Danny, left the residence with intentions of committing a burglary near Philadelphia Place.

In the meantime, Officer Strachota found a number of quarters inside the garage and also found some wafflestomper boots hidden behind a partition near the water heater. Monnier and Strachota, followed by defendant's wife, went into the upper level of the house.

Officer Strachota testified to finding $12.50 worth of coins in the garage. He also told about finding the hiking boots, which he said were "real wet." He also testified to finding the vending machines upstairs and some nuts from one of the vending machines. In connection with the description of the nuts, Strachota was asked what Mrs. Johnson said about them, but an objection as to hearsay was sustained. The State then made the following offer of proof:

State would make an offer of proof that if allowed to answer, the witness would testify that she stated that the peanuts were taken in the burglary. And the State's offered them, she's unavailable to me as a witness because of a spousal privilege. And given the fact that she knows everything in the burglary, it exposes her to criminal liability, so it's an exception to the hearsay rule for being in possession of stolen goods.

Following argument outside the presence of the jury, the trial court changed its ruling and overruled the hearsay objection, allowing testimony that Mrs. Johnson said to the officer that the peanuts were removed from the vending machine.

Strachota further testified that later in the morning, Cheryl Bland, the mother of defendant's wife, called him, which caused him to return to the premises. Bland then showed him a stand for one of the stolen vending machines and a blue peanut-vending machine, both of which had been hidden behind a couch. Following additional conversation with Bland, Strachota found some quarters and the stand for the other vending machines. The stand was found underneath the downstairs kitchen table, and the quarters were found wrapped in a towel on a counter in the downstairs kitchen.

As part of the defense, defendant's brother Randy testified that he committed the burglary by himself. He admitted that he was wearing mountain boots, or wafflestompers. He said that following the break-in, he took two vending machines and carried them to Taco John's. This was approximately 400 feet to the north. He said that he thought he made two trips from the scene of the burglary to Taco John's because there were two machines. He then carried one of the vending machines to the defendant's house, changed boots, and went back to get the other vending machine.

Randy denied that his brother, the defendant, had anything to do with the burglary. The witness further said that he took the peanuts out of the machine and put them in a bowl and that he took the money and wrapped it in a rag in the kitchen. He stated that he took the stands off the machines, taking one off in the kitchen and one off in the garage.

Defendant's wife testified that her husband had been home all evening. However, she also said that she and her husband did not sleep in the same room that night. She assumed he was in bed all that time until she heard...