State v. McDowell
| Decision Date | 14 October 1994 |
| Docket Number | No. S-93-1112,S-93-1112 |
| Citation | 522 N.W.2d 738,246 Neb. 692 |
| Parties | STATE of Nebraska, Appellee, v. Marty A. McDOWELL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Motions to Dismiss: Evidence. In determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that reasonably can be drawn from the evidence, and every controverted fact resolved in its favor.
2. Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a jurisdictional necessity and may be raised by an appellate court sua sponte.
3. Judgments: Time: Appeal and Error. The time for the appeal of a judgment runs from the date the judgment is rendered.
4. Criminal Law: Sentences: Judgments: Words and Phrases. In a criminal case, the judgment is the sentence.
5. Judgments: Records: Words and Phrases. The rendition of a judgment is the act of the court, or a judge thereof, in pronouncing judgment, accompanied by the making of a notation on the trial docket, or one made at the direction of the court or judge thereof, of the relief granted or denied in an action.
6. Judgments: Final Orders: Records. The mere oral pronouncement of a judgment without an entry on the trial docket is not the rendition of a judgment or a final order.
7. Judgments: Final Orders: Records. The issuance of a memorandum opinion or order by a judge without the entry of a notation on the trial docket is not the rendition of a judgment. However, failing a notation on the trial docket, a judgment is rendered when some written notation of the judgment is filed in the records of the court.
8. Judgments: Records: Jurisdiction: Appeal and Error. A notice of appeal filed after the trial court announced its decision, but before a judgment has been rendered, is effective to confer jurisdiction on the appellate court if the notice of appeal shows on its face that it relates to the decision which has been announced by the trial court and the record shows that a judgment was subsequently rendered in accordance with the decision which was announced and to which the notice of appeal relates.
9. Constitutional Law: Rules of the Supreme Court: Statutes: Notice. Neb.Ct.R. of Prac. 9E (rev. 1992) requires that a party presenting a case involving the federal or state constitutionality of a statute must file and serve a separate written notice thereof with the Supreme Court Clerk at the time of filing such party's brief.
10. Criminal Law: Proof. The State must prove beyond a reasonable doubt each and every element of the crime charged.
11. Burglary: Intent. A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.
12. Burglary. Evidence of any act of physical force, however slight, by which the obstruction to entering is removed is sufficient to prove a breaking.
13. Burglary. Climbing or jumping a fence does not constitute a breaking for the purposes of burglary.
Eugene G. Schumacher, of Luckey, Sipple, Hansen, Emerson & Schumacher, Columbus, for appellant.
Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
After a jury trial in the district court for Platte County, the appellant, Marty A. McDowell, was convicted of burglary, conspiracy to commit burglary, and theft by unlawful taking. After the verdict, the trial court dismissed the conviction for conspiracy to commit burglary, but let the remaining convictions stand. On appeal, McDowell's assignments of error concern only the conviction for burglary. McDowell contends that the evidence adduced against
him was insufficient as a matter of law to sustain a conviction for burglary. McDowell claims, in effect, that the prosecutor charged him with the wrong crime. Although he admits he climbed a fence in order to steal transmission casings from Columbus Transmission, he argues that climbing a fence does not constitute breaking, an essential statutory element of burglary. We agree and, therefore, reverse and remand.
During the early morning hours of March 25, 1993, McDowell and Neil Huston were caught stealing transmission casings by Lonny Cattau, one of the owners of Columbus Transmission in Columbus, Nebraska. Cattau woke up around 1 a.m. on March 25 feeling that something was wrong at his transmission shop. He decided to drive down to his shop. As he approached the shop, he noticed a car driving unusually slow past his shop. He followed the car until he saw it go into a trailer court. Cattau then returned to his shop.
After a short while, he saw the car he had followed just north of his parking lot. Cattau observed the driver turn off his headlights and back into a carport located just beyond the chain link fence which constitutes the northern border of the Columbus Transmission storage yard. The storage yard is bordered by the Columbus Transmission building on one side and fence on the other three sides. The storage yard was used to store differentials, transmissions, transmission casings, and other parts.
After the car was parked, Cattau walked out of his shop and over to the carport. When he reached the carport, he saw two individuals, later determined to be McDowell and Huston, loading transmission casings into the backseat of the car located under the carport. Cattau asked McDowell and Huston what they were doing, but received no response. Cattau eventually took McDowell and Huston back to his office. McDowell told Cattau that he was taking the transmission casings in order to pay off a ticket. McDowell also told Cattau that he jumped the fence to get into the storage yard. Cattau then called law enforcement officers.
At trial, Huston testified that after McDowell parked the car under the carport, McDowell climbed a corrugated steel fence and jumped into the Columbus Transmission storage yard. According to Huston, once inside the yard, McDowell picked up transmission casings and threw them over the fence. Huston then carried the transmission cases into the carport. When a light came on at Columbus Transmission, McDowell and Huston fled in the car. Later, McDowell and Huston drove back to the carport to retrieve the transmission casings. While they were loading the remaining casings, Cattau caught them.
McDowell asserts that the trial court erred (1) in failing to grant his motion to dismiss made at the conclusion of the State's case; (2) in failing to hold that the evidence presented was insufficient to support a conviction for burglary; (3) in failing to give a requested instruction concerning the definition of "to break and enter"; (4) in giving instruction No. 8, defining "to break and enter"; (5) in failing to grant his motion for new trial; and (6) in failing to grant his motion to quash, in which he challenged the constitutionality of Neb.Rev.Stat. § 28-507 (Reissue 1989).
In determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that reasonably can be drawn from the evidence, and every controverted fact resolved in its favor. State v. Carter, 241 Neb. 645, 489 N.W.2d 846 (1992).
Before addressing the merits of this appeal, we first consider the timeliness of the appeal from the judgment, as there appears to have been an irregularity. Timeliness of an appeal is a jurisdictional necessity and may be raised by an appellate court sua With respect to the timeliness of an appeal, Neb.Rev.Stat. § 25-1912(1) (Cum.Supp.1992) provides in pertinent part the following:
sponte. See In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
[P]roceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court, including judgments and sentences upon convictions for felonies and misdemeanors, shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within thirty days after the rendition of such judgment or decree or the making of such final order, a notice of intention to prosecute such appeal....
In order to determine the timeliness of McDowell's appeal from the judgment of the district court, it is necessary to determine the date upon which judgment was rendered. This is necessary because the time for the appeal of a judgment runs from the date the judgment is rendered. Id. In a criminal case, the judgment is the sentence. State v. Spotted Elk, 227 Neb. 869, 420 N.W.2d 707 (1988); In re Interest of Wolkow, 206 Neb. 512, 293 N.W.2d 851 (1980); State v. Long, 205 Neb. 252, 286 N.W.2d 772 (1980). The rendition of a judgment is the act of the court, or a judge thereof, in pronouncing judgment, accompanied by the making of a notation on the trial docket, or one made at the direction of the court or judge thereof, of the relief granted or denied in an action. Neb.Rev.Stat. § 25-1301(2) (Reissue 1989). This court has held that the mere oral pronouncement of a judgment without an entry on the trial docket is not the rendition of a judgment or a final order. Fritch v. Fritch, 191 Neb. 29, 213 N.W.2d 445 (1973). We have also held that the issuance of a memorandum opinion or order by a judge without the entry of a notation on the trial docket is not the rendition of a judgment. Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 Neb. 119, 241 N.W.2d 541 (1976). However, failing a notation on the trial docket, a judgment is rendered when some...
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