State v. Peterson, 89-1205

• Decision Date: 26 October 1990
• Docket Number: No. 89-1205,89-1205
• Citation: 236 Neb. 450,462 N.W.2d 423
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. John M. PETERSON, Appellant.

Page 423

462 N.W.2d 423

236 Neb. 450

STATE of Nebraska, Appellee, v. John M. PETERSON, Appellant.

No. 89-1205.

Supreme Court of Nebraska.

Oct. 26, 1990.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the Supreme 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 finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

2. Verdicts: Appeal and Error. The finding of guilty by the trier of fact will not be overturned on appeal unless it is based on evidence so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support a finding of guilty.

3. 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.

4. Criminal Law: Evidence: Circumstantial Evidence: Intent: Proof. When the sufficiency of the evidence as to criminal intent is in issue, a direct expression of intention by the defendant is not required; the intent with which an act is committed involves a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. The requisite state of mind is a question of fact and may be proved by circumstantial evidence.

5. Sentences: Appeal and Error. An order imposing a sentence within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

6. Sentences. It is the minimum portion of an indeterminate sentence which measures its severity.

Avis R. Andrews, Fremont, for appellant.

Robert M. Spire, Atty. Gen., and Melanie J. Whittamore-Mantzios, Lincoln, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Contending that he did not have the requisite intent to steal when he broke into and entered a Fremont, Nebraska, sporting goods store around 2:30 a.m. on June 2, 1989, John M. Peterson appeals his burglary conviction and sentence.

After his jury conviction, the defendant was sentenced to prison for not less than 4 nor more than 15 years.

On appeal, the defendant, in substance, claims (1) that there was insufficient evidence to prove that at the time he broke into the sporting goods store he had the intent to steal and (2) that his sentence is excessive. We affirm both Peterson's conviction and sentence.

In reviewing a criminal conviction, it is not the province of the Supreme 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 finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them. State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (1990).

Taking the view most favorable to the State, the evidence reflects the following: On June 2, 1989, at 2:30 a.m., police officers responded to a silent alarm at Lou's Sporting Goods (Lou's), located in Fremont, Dodge County, Nebraska. Two officers entered the business and proceeded to search for persons in the store. In a room beneath a stairway, the officers located Peterson. The defendant was crouched under a trophy-assembly work station with his gloved hands over his head. Ten feet from Peterson the officers found a rifle belonging to the store. The officers also found the defendant's personal knapsack, containing a pair of binoculars, a holster, a scope, and three boxes of pistol shells, all of which were the property of Lou's.

Peterson told the officers that he had taken the rifle because he liked rifles, that the scope was for the rifle, that he had taken the binoculars because he wanted them, and that the holster was for his girl friend to use in an upcoming parade. He explained that he had taken the ammunition for a gun he had previously purchased from Lou's.

The defendant told the officers he had entered the building to "prove a point." When asked what he meant, Peterson declared " 'there are bars on the windows,' [but] there was nothing on the roof." The defendant said he entered the sporting goods store by climbing a drainpipe up to the roof and then removing the cover from a roof hatch, after which he climbed down into the store.

In considering Peterson's first assignment of error, that there was insufficient evidence to prove that he had the intent to steal when he broke into and entered the sporting goods store, we are guided by the following rules of law: The finding of guilty by the trier of fact will not be overturned on appeal unless it is based on evidence so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support a finding of guilty. State v. Boham, 233 Neb. 679, 447 N.W.2d 485 (1989). Under Neb.Rev.Stat. § 28-507(1) (Reissue 1989), "[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." When the sufficiency of the evidence as to criminal intent is in issue, a direct expression of intention by the defendant is not required; the intent with which an act is committed involves a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990). The requisite state of mind is a...