State v. Pierce, S-94-398

CourtSupreme Court of Nebraska
Citation537 N.W.2d 323,248 Neb. 536
Docket NumberNo. S-94-398,S-94-398
PartiesSTATE of Nebraska, Appellee, V. Timothy PIERCE, Appellant.
Decision Date15 September 1995

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537 N.W.2d 323
248 Neb. 536
STATE of Nebraska, Appellee,
Timothy PIERCE, Appellant.
No. S-94-398.
Supreme Court of Nebraska.
Sept. 15, 1995.

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Syllabus by the Court

1. Circumstantial Evidence. A fact proven by circumstantial evidence is nonetheless a proven fact.

2. Circumstantial Evidence. Circumstantial evidence is not inherently less probative than direct evidence.

3. Criminal Law: Evidence: Appeal and Error: Case Overruled. To the extent that previous Nebraska Supreme Court cases require an appellate court to construe evidence in favor of the accused, whether the evidence be solely circumstantial, direct, or a combination thereof, they are overruled.

4. Convictions: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

[248 Neb. 537] Leonard G. Tabor, Gering, for appellant.

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Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.


LANPHIER, Justice.

Appellant, Timothy Pierce, was convicted by a jury in Scotts Bluff County District Court of forcibly breaking and entering with the intent to commit a felony or steal property, in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1989). He was also found to be a habitual criminal and was sentenced to an indeterminate term of 14 to 17 years' imprisonment. Upon review, the Nebraska Court of Appeals concluded that Pierce's conviction was based solely upon circumstantial evidence. The Court of Appeals then determined that the inference of nonguilt arising from the circumstantial evidence was stronger than that of guilt and that the case should not have been submitted to the jury. The Court of Appeals, making all reasonable inferences in favor of the accused, held that the evidence was insufficient to sustain the conviction. The Court of Appeals, therefore, reversed the conviction and remanded the cause with directions that the information be dismissed. See State v. Pierce, 3 Neb.App. 440, 527 N.W.2d 872 (1995). We granted the State's petition for further review. Because the Court of Appeals applied the wrong standard of review and since we find the evidence sufficient to sustain the conviction upon the appropriate standard of review, we reverse and remand.


On August 25, 1993, at about 1:49 a.m., Julie Pengelly awoke in her bed to find a man with his hands on her shoulders. She screamed and pulled her knees to her chest and kicked the intruder in the chest, catapulting him across her bedroom. He hit the opposite wall and fell into a chair. Pengelly then ran out of her house to a neighbor's, Bonnie Wickard's. Pengelly testified that as she fled, a dog named "Bear," owned by Pierce, chased her. When she got to Wickard's, she knocked on the wall under Wickard's bedroom window and told Wickard she needed [248 Neb. 538] to be let in right away because there was a man in her house. When she got inside, she went straight to the phone and dialed 911.

Vern Hessler, a deputy sheriff, arrived shortly after Pengelly phoned. When Pengelly returned to her house with the deputy, she noticed that the door toward the lake, which had been closed, was open. She also noticed that a screen for a floor-to-ceiling window had been removed from the window and was leaning against a hutch, near the window.

Pengelly and the deputy found a beer bottle outside her house, near the window with the screen removed. Pengelly noticed the beer was cold and still had foam in it. Deputy Hessler testified that he thought that the beer bottle had recently been placed near the window because it appeared as though some of the beer had spilled. Deputy Hessler did not seize the bottle at that time. The next morning, Pengelly retrieved the bottle from where it had originally been found. The bottle was later turned over to an investigator with the Scotts Bluff County Sheriff's Department. The investigator sent the bottle to the Nebraska State Patrol's Criminalistics Laboratory. Linda Brokofsky, a fingerprint examiner for the State Patrol, testified that a latent print on the bottle matched the fingerprint of Pierce's right ring finger.

After the inspection of the premises with Deputy Hessler, Pengelly gave a description of the intruder. At trial, Deputy Hessler testified that Pengelly described the intruder as follows:

white male suspect, 5'6"' tall, average, indicating not muscular build, late 20's to early 30's in age, dishwater blond hair, ear lobe length parted down the middle. She said he had no mustache or beard, no chest hair, no alcohol on his breath, she said he was wearing no shirt or cap, and she was unaware if he had anything below--on below the waist, she didn't observe that.

Pengelly told Deputy Hessler that a neighbor, Pierce, might match the description. Shortly after 3 a.m., Deputy Hessler went two doors down to the house where Pierce was staying. Deputy Hessler testified that

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Pierce was wearing blue jeans and no shirt, and appeared to have just awakened. Deputy Hessler observed that Pierce had chest hair, a mustache, and a beard. [248 Neb. 539] When questioned, Pierce told Deputy Hessler he had been asleep for several hours.

At trial, Katherine Carmodie Pierce, who was living with Pierce at the time of the break-in, and who had by the time of trial married Pierce, testified that shortly after 12:30 a.m., she and Pierce went to sleep. She also testified that Pierce was with her until Deputy Hessler arrived around 3:15 a.m.

This testimony of Katherine Carmodie Pierce conflicts somewhat with the testimony of Edward Gonzales. Gonzales was at a party on the beach near Pengelly's house the night of the break-in. Gonzales and others at the party testified that Pierce had been at the party on and off during the evening. Gonzales testified that he knew that Pierce left the party around 2 a.m. because it was past the time when beer could be bought. However, on cross-examination Gonzales was asked to read the following portion of his deposition:

"Okay. And how long did he stay, do you remember? Well, he was sitting down there putting wood into the fire and that, and he talked to Cenovio for a while, I was already inside the tent with Lori and I didn't know when he had left, I didn't know, I have no recall of when he left."

Others at the party were Lori Gonzales, Cenovio Gonzales, Juanita Martinez, Arthur Rivera, Tom Jiminez, Jessica Gomez, and a man named "Jeff" whose last name does not appear in the record. Rivera, Jiminez, and Jeff did not testify. Of those who did testify, only Lori Gonzales and Cenovio Gonzales were asked when Pierce last left the party. Cenovio Gonzales testified that Pierce left the party once and returned with beer. He also testified that Pierce left a second time. Cenovio Gonzales testified that "[w]hen he [Pierce] left the second time he said he was going home because everybody else was going to sleep." After Pierce left this second time, Cenovio Gonzales testified, he went to sleep. Lori Gonzales, however, testified that after Pierce left the second time, he returned to the campsite. She testified that she did not see Pierce leave for the evening because she went to sleep in a tent before he left.

Reynaldo Ramirez was the general manager of Gilligan's, an establishment near the lake which sells beer. He testified that Pierce occasionally worked for him stocking the store's beer [248 Neb. 540] coolers, among other odd jobs. Ramirez testified that single beers were stocked in the coolers and that on August 24, 1993, Pierce worked at the store.


On petition for further review, the State of Nebraska claims the Court of Appeals erred in determining that the inference of nonguilt was stronger than that of guilt, and consequently in making all reasonable inferences in favor of the accused rather than the State.


The State, in its assignment of error and brief on its petition for further review, argues that the Court of Appeals erred in applying the standard of review outlined in State v. Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995). Thus, the threshold question to be determined in this appeal is, What is the appropriate standard of review?

The character of the case and the assigned errors and the issues raised therein determine an appellate court's standard of review. Therefore, to determine whether the Court of Appeals applied the appropriate standard of review, we must look to appellant's assignments of error in the court below. Appellant, Pierce, assigned the following errors:

1. Failure of the Court to sustain defendant's Motions for directed verdict at the close of the evidence.

2. The evidence was insufficient as a matter of law to sustain a finding of guilt.

3. The State failed to prove all the essential elements of the crime charged.

4. The Trial Court erred in admitting, over defense objection, Exhibits numbered 8, 12, 13, 14, 15, 16 and 18.

5. Failing to grant Appellant's Motion for New Trial.

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6. The sentences imposed by the Court are excessive and an abuse of discretion.

The Court of Appeals did not state which assignment of error its opinion addressed, nor did it address all the assignments of error, having resolved the case on one issue. See State v. Pierce, 3 Neb.App. 440, 527 N.W.2d 872 (1995). Its opinion, [248 Neb. 541]...

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