State v. Lacy, 40174

• Decision Date: 22 January 1976
• Docket Number: No. 40174,40174
• Citation: 195 Neb. 299,237 N.W.2d 650
• Parties: STATE of Nebraska, Appellee, v. Earl Waldo LACY, Appellant.
• Court: Nebraska Supreme Court

Page 650

237 N.W.2d 650

195 Neb. 299

STATE of Nebraska, Appellee, v. Earl Waldo LACY, Appellant.

No. 40174.

Supreme Court of Nebraska.

Jan 22, 1976.

Syllabus by the Court

1. In determining the sufficiency of evidence to sustain a conviction in a criminal prosecution, it is not the province of this 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 jury.

2. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it.

3. Common purpose to commit a crime may be inferred from the circumstances surrounding the act and from the defendant's subsequent conduct.

4. A more severe punishment cannot be exacted in order to punish a convicted person for exercising his right to trial. However, sentence concessions are proper when a defendant pleads guilty to an offense.

5. The time requirements of section 29--2103, R.R.S.1943, are mandatory. A motion for a new trial under that section must be filed within 10 days after the verdict is rendered, not within 10 days from the date of sentencing, unless the verdict and sentencing occur on the same day.

Keith N. Bystrom, Public Defender, Leonard P. Vyhnalek, North Platte, for appellant.

Paul L. Douglas, Atty. Gen., Steven C. Smith, Special Asst. Atty. Gen., Lincoln, for appellee.

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

BRODKEY, Justice.

Earl Waldo Lacy appeals from a jury verdict finding him guilty of robbery as defined in section 28--414, R.R.S.1943, and from the court's sentence of not less than 5 nor more than 8 years in the Nebraska Penal and Correctional Complex. The appellant contends that the evidence does not support the verdict and that the court abused its discretion in sentencing in view of the fact that Lacy's alleged accomplice, Wordie Wright, Jr., received a 3-year term after pleading guilty. We affirm.

On November 1, 1974, an over-the-road truck driver, Earl J. Bartron, stopped at the I-80 reststop east of Sutherland. On his way into the restrooms, he observed a Thunderbird automobile parked with a person whom he identified as Lacy sitting in the front passenger seat. According to the victim, he met Wordie Wright, Jr., as he, Bartron, was entering the building. While he was in the restroom, he heard the door open again. Lacy and Wright were waiting when Bartron emerged from the stall. Bartron further testified that Wright had a gun, which he identified at trial, prevented Bartron from leaving, and asked Lacy if they should 'kill him.' Wright asked Bartron for money and he turned the cash in his wallet over to Wright. He did not know how much money was in the wallet. Wright allegedly told Bartron to get in a stall and stay there. Bartron did so and thought that he heard one person leave the building; and after another warning from Wright and a time lapse of perhaps 3 to 4 minutes, he heard a second person leave. Perhaps 15 Minutes later, he left and told his partner, who was sleeping in the truck, about the robbery which they reported on a citizen's band radio.

Wright and Lacy were apprehended by a Nebraska State Patrol officer while traveling west on the Interstate Highway. The Thunderbird fit the officer's radio report description of the suspects. He clocked the car driven by Lacy at speeds exceeding 100 m.p.h. During his pursuit he noticed the passenger, Wright, take a black bag from the front seat and put it into the back of the car. After the car was stopped and the two arrested, the gun which Bartron identified as the robbery weapon was found in the bag. This gun had some distinctive characteristics--the bluing was off and it was slightly rusted.

Lacy testified in his own defense, and also called Wright, who had pleaded guilty to robbery, as a witness. Both testified that they had stopped on their journey to California to rest the car and themselves. Wright said that he took Lacy's gun to the restroom and robbed Bartron. He testified that he kept the $15 Bartron gave him and that Lacy came to the restroom door after Wright robbed Bartron. According to Wright, an exchange occurred in which Lacy asked what was taking so long. Wright teplied 'nothing,' and Lacy left, saying he would be in the car.

Lacy testified that he woke up in the car, went into the restroom, and saw Wright with the gun held to Bartron's head. Wright then allegedly told Lacy to get out. Lacy stated he then left and tried to start the car in order to leave Wright behind. The car stalled and Wright returned to the car, which Lacy then drove onto the highway.

The evidence against Lacy was mainly direct testimony by Bartron about Lacy's involvement in the crime. Lacy and Wright contradicted this testimony. The rule is that: 'In determining the sufficiency of evidence to sustain a conviction in a criminal prosecution, it is not the province of this 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 jury.' State v. Spidell, 194 Neb. 494, 233 N.W.2d 900 (1975). After hearing all the evidence, including testimony by Lacy and Wright that they had less than $10 between them when they reached the reststop, and that Wright had produced $15 from his trouser waistband after he was arrested, the jury chose to believe Bartron. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it. State v. Fowler, 193 Neb. 420, 227 N.W.2d 589 (1975).

The testimony indicated that Lacy did not use the gun to threaten Bartron, nor did he have possession of the money taken from Bartron. The court gave the jury the Nebraska Jury Instruction of aiding and abetting. Under this instruction if found guilty of aiding and abetting, Lacy could be punished as if he were the principal offender. There is ample evidence to show that the actual robbery was committed by Wright who was engaged with the defendant in a common, concerted unlawful act. NJI No. 14.12. Common purpose to commit a crime may be inferred from the circumstances surrounding the act and from the defendant's subsequent conduct. Miller v. State, 173 Neb. 268, 113 N.W.2d 118 (1962).

Of course, silence or acquiescence is not enough to make one an accomplice, but the evidence here presented was sufficient to permit the jury to find conscious participation or sharing in the criminal act involved. State v. Alvarez, 189 Neb. 276, 202 N.W.2d 600 (1972).

Lacy next...