State v. Murphrey, 84-566
| Decision Date | 09 August 1985 |
| Docket Number | No. 84-566,84-566 |
| Citation | 371 N.W.2d 702,220 Neb. 699 |
| Parties | STATE of Nebraska, Appellee, v. Stephen P. MURPHREY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, 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.
2. Lesser-Included Offenses. To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser.
3. Lesser-Included Offenses: Jury Instructions. It is error for a court to instruct on lesser-included offenses where the offenses so instructed on are not in reality lesser-included offenses.
4. Juries: Presumptions: Verdicts. It is presumed that a jury followed the instructions given in arriving at its verdict.
5. Jury Instructions: Appeal and Error. Before error predicated on the giving of an instruction may be considered a ground for reversal, a defendant must show that he was prejudiced by the instruction given.
Charles D. Hahn, Auburn, and Daniel E. Wherry, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.
In an information filed in Richardson County, Nebraska, the defendant, Stephen P. Murphrey, was charged with attempted burglary, a violation of Neb.Rev.Stat. §§ 28-507(1) (defining burglary) and 28-201 (defining criminal attempt) (Reissue 1979). Attempted burglary is a Class IV felony. The defendant pled not guilty to the charge and, after a jury trial, was found guilty. The defendant was sentenced to 5 years' probation and timely appealed to this court. The defendant has assigned various errors which can be consolidated into three assignments: (1) The jury verdict of guilty was not sustained by the evidence; (2) The court erred in instructing the jury on lesser-included offenses; and (3) The court erred in denying defendant's motion for dismissal and later for a mistrial because the State failed to comply with the court's discovery order. After consideration of the defendant's assigned errors, we affirm.
The evidence and testimony presented at trial showed that the defendant met Liza Weiss while defendant was hitchhiking near his home in Wichita, Kansas. After spending 4 days with defendant in Wichita while she attended a conference for librarians, Ms. Weiss returned to Falls City, Nebraska, where she lived with her uncle, Donald Sailors. During the next several weeks, the defendant and Ms. Weiss wrote each other letters and defendant made several trips to Falls City.
Although the testimony is somewhat in conflict, the evidence shows that on the weekend of May 13, 1983, the defendant came up to visit Ms. Weiss and gave her a copy of his will and his safe-deposit box key. The will named Ms. Weiss as a devisee. The defendant stayed with Ms. Weiss at her uncle's home. By Sunday the two had had some arguments and defendant was feeling depressed due to Ms. Weiss' indecisiveness about marrying him. Ms. Weiss took him to the highway to hitchhike back to Wichita. There he was picked up by some sympathetic men who took him to a bar and drank with him. The defendant called Ms. Weiss several times from the bar, threatening to kill himself if they could not get back together. He then hitchhiked back to Falls City and went to the Sailors home at about 11 p.m. There he knocked on the kitchen door, and getting no response, went to Ms. Weiss' window where he saw a light. Frustrated at her refusal to talk to him, he cut a hole in the screen to her bedroom window and broke the window. She still refused to speak with him even though he persisted in threatening suicide with the knife he held in his hand.
Defendant then went to the back of the house, entered an enclosed porch, and approached the kitchen door. At this point Mr. Sailors, a man 79 years old, appeared at the door with a gun, recognized defendant, and told defendant he could not come in. Mr. Sailors testified that the defendant then broke the window in the kitchen door by plunging his hand with the knife in it through the window. Sailors testified that defendant poked the knife at him and tried to break the door down. Sailors then fired one shot and hit the defendant in his left shoulder. The defendant fell on the enclosed back porch. Paramedics and police officers arrived on the scene. Defendant struggled with the police, and his arm was broken in that scuffle. Eventually, defendant was transported to a Lincoln hospital. Later, he was charged with attempted burglary.
As stated above, defendant's testimony conflicts in many respects with that of Mr. Sailors.
In State v. Evans, 215 Neb. 433, 443, 338 N.W.2d 788, 795 (1983), citing State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), we noted that
it is not for this court to accept one version of the case over another; that was for the jury. In determining the sufficiency of the evidence to sustain a conviction, 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 trier of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
To commit a burglary, as defined in § 28-507(1), it is necessary that there be a breaking and entering with the intent to commit any felony or to steal property of any value. Here, the defendant, charged with attempted burglary, argues that he had no intent to commit a felony in or take anything from the Sailors home. Defendant testified he had the knife because he was contemplating suicide. Mr. Sailors, on the other hand, testified that the defendant had thrust his knife at Mr. Sailors. If the jury chose to believe Mr. Sailors and not the defendant, it could well find that the defendant intended to harm Mr. Sailors with that knife. Such conduct on the part of defendant would constitute the felony of assault in the second degree, as defined in Neb.Rev.Stat. § 28-309 (Cum.Supp.1984). The evidence would also support a jury finding that the defendant attempted to break and enter the Sailors home and that in fact defendant had opened a screen door and entered the enclosed back porch. Since these facts constitute the material elements of attempted burglary, the evidence before...
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...or second degree. The only relevant assumption the law permits is that the jury followed the court's instruction. State v. Murphrey, 220 Neb. 699, 371 N.W.2d 702 (1985); State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982). Thus, the verdict means that the jury accepted Patterson's version ......
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