State v. Morley

• Citation: 474 N.W.2d 660,239 Neb. 141
• Decision Date: 20 September 1991
• Docket Number: 90-702,Nos. 90-689,s. 90-689
• Parties: STATE of Nebraska, Appellee, v. Ronald L. MORLEY, Appellant. STATE of Nebraska, Appellee, v. William A. MORLEY, Appellant.
• Court: Supreme Court of Nebraska

Page 660

474 N.W.2d 660

239 Neb. 141

STATE of Nebraska, Appellee, v. Ronald L. MORLEY, Appellant.

STATE of Nebraska, Appellee, v. William A. MORLEY, Appellant.

Nos. 90-689, 90-702.

Supreme Court of Nebraska.

Sept. 20, 1991.

Syllabus by the Court

1. Directed Verdict. A defendant who moves for a directed verdict at the close of the State's evidence and who, upon the overruling of such motion, proceeds with the trial and introduces evidence, waives any error in the ruling on the motion for a directed verdict.

2. Criminal Law: Circumstantial Evidence: Proof. In a criminal case based solely on circumstantial evidence, the State need not, in order to sustain its burden of proof, disprove every hypothesis but that of guilt.

3. Criminal Law: Circumstantial Evidence: Evidence: Appeal and Error. In criminal cases, circumstantial evidence is to be treated the same as direct evidence, and the State, upon review, is entitled to have all conflicting evidence, direct and circumstantial, viewed in its favor.

4. Convictions: Circumstantial Evidence: Case Overruled. Language in State v. Trimble, 220 Neb. 639, 371 N.W.2d 302 (1985), proclaiming that criminal convictions based solely on circumstantial evidence can stand only if the State has disproved every hypothesis but that of guilt, is rejected.

5. Criminal Law: Words and Phrases. The corpus delicti is the body or substance of the crime, the fact that a crime has been committed, without regard to the identity of the person committing it.

6. Criminal Law: Circumstantial Evidence: Proof. The corpus delicti may be proved by circumstantial evidence.

7. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is proof of collateral facts and circumstances from which the mind infers the conclusion that the fact sought to be established existed.

8. Pleadings: Judgments: Verdicts. A motion for judgment notwithstanding the verdict, provided for by Neb.Rev.Stat. § 25-1315.02 (Reissue 1989), is limited to civil proceedings.

9. Criminal Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, a criminal defendant is required to show that counsel's performance was deficient and that such deficient performance prejudiced the defense such that the results of the proceedings would have been different but for counsel's deficient performance.

10. Criminal Law: Effectiveness of Counsel: Proof. Where a criminal defendant is unable to demonstrate sufficient prejudice, no examination of whether counsel's performance was deficient is necessary.

11. Criminal Law: Directed Verdict. A directed verdict in a criminal case is proper only when there is a complete failure of evidence to establish an essential element of the crime charged or when the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

12. Criminal Law: Directed Verdict: Appeal and Error. In an appellate court's consideration of a criminal defendant's motion for a directed verdict, the State is entitled to have all its relevant evidence accepted as true, every controverted fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence.

13. Constitutional Law: Convictions: Due Process: Proof. In order to comport with the due process clause of the 14th amendment to the U.S. Constitution, criminal convictions may be had only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which a defendant is charged.

14. Jury Instructions: Appeal and Error. Upon review of a jury instruction, an appellate court is to consider how reasonable jurors could have understood the instruction as a whole.

15. Constitutional Law: Jury Instructions: Due Process: Proof. An instruction which defines "reasonable doubt" in a manner which does not lessen the State's burden of proof below the requisite reasonable doubt standard does not run afoul of the due process requirements of U.S. Const. amend. XIV.

16. Sentences: Probation and Parole: Appeal and Error. The denial of probation and the imposition of a sentence within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Dalton W. Tietjen, Tietjen, Simon & Boyle, Omaha, for appellants.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

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

CAPORALE, Justice.

I. INTRODUCTION

In case No. 90-689, the defendant-appellant Ronald L. Morley was charged with attempted burglary, in violation of Neb.Rev.Stat. §§ 28-201 and 28-507 (Reissue 1989). His brother, defendant-appellant William A. Morley, was charged with the same crime in case No. 90-702. In accordance with the verdicts delivered following a consolidated trial, the district court adjudged each of the brothers guilty as charged and sentenced each to a 6-month term of imprisonment in the county jail. In these separate but consolidated appeals, the brothers assign errors which combine to assert that (1) the district court erred in overruling their motions to dismiss at the conclusion of the State's evidence, (2) the evidence was insufficient to support the verdicts and judgments entered thereon, (3) they received ineffective assistance of trial counsel, (4) the jury was improperly charged, and (5) the sentences imposed were excessive. We affirm.

II. FACTS

At approximately 2:30 a.m. on November 5, 1989, Officer Patrick Knopik of the Lincoln Police Department discovered the brothers in an alley behind an automobile appearance-enhancing shop located in a Lincoln strip mall shopping center containing a number of facilities. The shop was located at the west end of the mall in a single-story multitenant building. A contiguous lot provided parking space for the shopping center.

The shop has two rear doors: a typical metal entry door with a locking doorknob located approximately 9 inches below a separate dead bolt lock, and an overhead garage-type door. The overhead door appears to be located about 3 feet east of the entry door and immediately west of a garbage Dumpster.

Knopik observed a person, who was wearing gloves and carrying an object in his right hand, walk in an easterly direction in front of his cruiser. The person bent over and placed the object next to the shop building behind the aforementioned Dumpster and then resumed walking easterly, away from Knopik, taking two or three steps before stopping and turning around near the center of the alley as Knopik stopped his cruiser. Knopik also saw a second person standing near the two doors at the rear of the shop.

Knopik got out of his cruiser and sought identification from the first person, William. Ronald proved to be the other person. At that time, neither brother offered an explanation for his presence.

Knopik placed both brothers onto the back seat of his cruiser, called for assistance, and inspected the area behind the Dumpster where he had seen William placing the object he had carried in his right hand. Knopik found a pry bar approximately 12 to 14 inches long with one flattened end. This was the only object found near the Dumpster.

Knopik then returned to his cruiser and questioned the brothers, who claimed to be parking lot paint stripers looking for business. William told Knopik that their automobile was in the parking lot of an adjacent apartment complex, but it was not visible from Knopik's position. By this time, Officer James Foral of the Lincoln Police Department had arrived at the scene. The brothers were then separated, William being placed in Foral's cruiser and Ronald remaining in Knopik's.

The rear entry door to the shop appeared to have been tampered with. The State theorized that the flat end of the pry bar had been inserted into the space between the door and the jamb and the bar then pried against the door while force was simultaneously applied to the doorknob in an effort to increase the size of the gap between the door and the jamb such that the door would swing free.

The doorknob, although locked, was drooping and quite loose. The door was dented in the area between the knob and the dead bolt, which was not in a locked position. The metal doorjamb, in the area horizontal to the dents on the door, was scratched and scraped such that metal was freshly exposed and paint fragments protruded from the scraped surface. Several witnesses testified that the dents on the door and the marks on the jamb were consistent with markings observed on other doors that had been forcibly pried open.

The owner of the shop, who was called to the scene by the police between 2:40 and 3 a.m. on November 5, 1989, testified that he had worked late on November 4 and that although he had locked the rear entry door, he had forgotten to engage the dead bolt lock. He noticed that the doorknob on the entry door was looser to the touch than normal and drooping more than when he had left the shop the previous evening. He further testified that he had not previously noticed the dents in the entry door around the knob, which dents appeared new to him. In addition, the owner stated that the recovered pry bar was not his and that he had not noticed it in the area around the Dumpster the previous evening.

No useful fingerprints were found either near the entry door or on the pry bar itself. The State's trace evidence expert conducted laboratory examinations of exterior paint scraped from the area around the doorknob and a paint chip found in the previously clean evidence bag into which the pry bar had been placed. The paint samples scraped from the building were similar in composition to the paint sample found in the bag, such that the sample from the bag could have come from the rear entry door of the shop.

The brothers' vehicle was found some 400 feet away, in a parking area within an apartment complex north and east of the shop. Knopik noticed various...