State v. Loveless
| Decision Date | 16 February 1990 |
| Docket Number | No. 89-347,89-347 |
| Citation | 451 N.W.2d 692,234 Neb. 463 |
| Parties | STATE of Nebraska, Appellee, v. Burton LOVELESS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Convictions: Testimony: Proof. A defendant's conviction of a crime may be based on uncorroborated testimony of an accomplice.
Chris M. Arps, of Arps & Schirber Law Offices, Papillion, for appellant.
Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.
A jury, in the district court for Sarpy County, convicted Burton "Butch" Loveless of theft by unlawful taking, a Class III felony. See Neb.Rev.Stat. §§ 28-511(1) (Reissue 1985) (theft by unlawful taking) and 28-518(1) (Reissue 1989) (grades of theft offenses; property valued at more than $1,000). Subsequently, the district court sentenced Loveless to imprisonment for a period of not less than 6 2/3 nor more than 20 years.
In his sole assignment of error, Loveless contends that as a result of uncorroborated testimony from an accomplice of Loveless, the jury's verdict is not sustained by sufficient evidence.
In determining whether evidence is sufficient to sustain a conviction in a jury trial, the Supreme Court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within a jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
State v. Brown, 225 Neb. 418, 428, 405 N.W.2d 600, 606 (1987). See, also, State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989).
On a claim of insufficiency of evidence, the Supreme Court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may the Supreme Court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
State v. Robertson, 223 Neb. 825, 830, 394 N.W.2d 635, 638 (1986). See, also, State v. Swigart, supra.
During October 1987, Dale Habrock, proprietor of Habrock Construction Company, noticed that Habrock's dump truck, trailer After Habrock's complaint, Steve Grabowski, a criminal investigator for the Sarpy County Sheriff's Department, was contacted by officers of the Douglas County Sheriff's Department, and they discussed the possibility of an undercover operation, a "sting," involving the purchase of stolen construction equipment. Since the Douglas County Sheriff's Department had no reported thefts of construction equipment, Grabowski mentioned the theft of Habrock's truck, trailer, and tractor. In a sting operation conducted by undercover officers of the Douglas County Sheriff's Department, with assistance from members of the Sarpy County Sheriff's Department, arrangements were made to "purchase" a truck and trailer from Jeff Steinhauer on December 1, 1987, in Douglas County. After Steinhauer arrived with the truck and trailer for a sale at a prearranged location, he was arrested and taken into custody at the Douglas County sheriff's patrol office. The truck and trailer which Steinhauer had produced were officially impounded. During an interview conducted by sheriff's deputies, Steinhauer implicated himself and other individuals in a series of crimes. Sometime later at the impoundment lot, Habrock identified the truck and trailer connected with Steinhauer as Habrock's property stolen in October 1987.
and tractor which had been situated atop of the trailer were missing from a construction site in Sarpy County. Habrock reported the theft of the truck, trailer, and tractor to the Sarpy County Sheriff's Department.
In 1988, when an Omaha police officer stopped Loveless, an Iowa resident, for a traffic violation in Omaha, the officer learned that there was an unserved warrant for Loveless' arrest in Sarpy County on account of the theft of Habrock's property. Loveless was taken into custody and was eventually delivered to Sarpy County authorities pursuant to the arrest warrant.
Steinhauer, at the time of Loveless' trial, had been convicted of theft in Douglas County, where he was incarcerated, and was awaiting trial in Sarpy County. The prosecutor had not "promised [Steinhauer] any deals in connection with [his] testimony" at Loveless' trial.
At Loveless' trial, Steinhauer testified that Loveless, whom he had known for approximately a year and a half, was involved in the theft of Habrock's truck, trailer, and tractor in October 1987. Steinhauer testified that Loveless drove the perpetrators to the construction site; helped remove Habrock's truck from the Habrock construction site by using a "dent puller" to take the ignition out of the truck; and instructed Steinhauer to drive the truck, with the trailer on which the tractor was loaded, to Council Bluffs, Iowa. According to Steinhauer, the perpetrators, including Loveless, disposed of the tractor, which was sold and apparently never recovered, and took the truck and trailer to a farm owned by a friend of Loveless. On the night before the prospective sale of the truck and trailer in the sting on December 1, 1987, Steinhauer told Mike Buglewicz, who Steinhauer did not know was an undercover officer, that Butch would "get ahold of me in the morning and let me know where the truck and the trailer was." Buglewicz testified that Steinhauer had mentioned Butch during a phone conversation between Buglewicz and Steinhauer on November 30, 1987.
Steinhauer further testified that Loveless drove the stolen Habrock truck and trailer to a grocery store parking lot in Council Bluffs. Later, the two men met at another location, where Loveless informed Steinhauer that he had replaced the ignition for the truck and painted the truck a different color. At this time, Loveless gave Steinhauer a key to the truck.
Loveless testified that he was not involved in the theft of Habrock's truck, trailer, or tractor; had not painted any truck; and had not given Steinhauer a key to any truck. Loveless claimed that Steinhauer testified against him for the reason that there was "bad blood" between the two men and that Steinhauer had a "[v]endetta" against Loveless.
At the conclusion of the evidence, the court instructed the jury in accordance with present NJI 14.58, namely:
The State has introduced evidence from a claimed accomplice of the defendant. His testimony should be closely scrutinized for any possible motives for falsification, and if you find that he has testified falsely in regard to any material...
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