State v. Pierce
| Citation | 439 N.W.2d 435,231 Neb. 966 |
| Decision Date | 27 April 1989 |
| Docket Number | No. 88-360,88-360 |
| Parties | STATE of Nebraska, Appellee, v. Randy PIERCE, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Criminal Law: Motions to Dismiss: Evidence. On a defendant's motion to dismiss for insufficient evidence of the crime charged against the defendant, the State is entitled to have all its relevant evidence accepted or treated as true, every controverted fact as favorably resolved for the State, and every beneficial inference reasonably deducible from the evidence.
2. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.
3. Criminal Law: Statutes. A statutory characterization or definition of a crime is self-subsistent or self-contained if the statute proscribing criminal conduct specifies all the essential parts or constituents of the crime.
4. Intent: Words and Phrases. Intent is the state of the actor's mind when the actor's conduct occurs. Intentionally means willfully or purposely, and not accidentally or involuntarily.
5. Intent: Words and Phrases. The intent involved in conduct is a mental process and may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding an incident.
6. Criminal Law: Intent: Proof: Circumstantial Evidence. When an element of a crime involves existence of a defendant's mental process or other state of mind of an accused, such elements involve a question of fact and may be proved by circumstantial evidence.
7. Criminal Law: Sentences: Words and Phrases. The grade of a criminal offense determines which punishment or penalty may be imposed on conviction for the crime.
8. Criminal Law: Trial. Regarding the grades of criminal mischief as a violation of Neb.Rev.Stat. § 28-519(1)(a) (Reissue 1985), existence of a pecuniary loss and the extent or amount of pecuniary loss, specified in § 28-519(2), (3), and (4), are questions for the fact finder.
9. Criminal Law: Trial: Indictments and Informations. A specific monetary amount, alleged in conjunction with "pecuniary loss" resulting from criminal mischief in violation of Neb.Rev.Stat. § 28-519 (Reissue 1985), informs the court and a defendant that the prosecution involves a felony and potential felony punishment on conviction for criminal mischief.
10. Criminal Law: Words and Phrases. "Pecuniary loss," used in Neb 11. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
Rev.Stat. § 28-519(2), (3), and (4) (Reissue 1985), means monetary loss suffered by another as the result of the defendant's conduct which constitutes criminal mischief under § 28-519.
12. Jury Instructions. All instructions, read conjunctively, must correctly state the law, adequately state the issues, and not mislead the jury.
13. Jury Instructions: Appeal and Error. A trial court, whether requested or not, must instruct the jury on the law of the case, and failure to do so constitutes prejudicial error.
14. Trial: Motions for Mistrial. A mistrial may be warranted where unfairness has been injected into a jury trial and so permeates the proceedings that no amount of admonition to the jury can remove the unfairness to a party.
15. Prosecuting Attorneys: Trial. Prosecutors are charged with the duty of conducting criminal trials in such a manner that an accused may have a fair trial.
16. Constitutional Law: Prosecuting Attorneys: Trial. A prosecutor's comment on a defendant's silence in the defendant's trial is a violation of an accused's right to remain silent under the 5th and 14th amendments to the U.S. Constitution and under article I, § 12, of the Nebraska Constitution.
17. Constitutional Law: Prosecuting Attorneys: Trial. The prohibition against a prosecutor's comment on a defendant's right to remain silent applies throughout a trial, including the opening statement and closing argument during the trial.
18. Constitutional Law: Prosecuting Attorneys: Trial. In an opening statement for a jury trial, a prosecutor's comment concerning the necessity of the defendant's testimony or an expression concerning the plausibility or credibility of anticipated testimony from a defendant violates an accused's right to remain silent at trial.
19. Constitutional Law: Prosecuting Attorneys: Trial. An accused's right to remain silent at trial, accorded by the 5th and 14th amendments to the U.S. Constitution and article I, § 12, of the Nebraska Constitution, is not limited to a statement concerning a defendant's failure to testify at trial, but includes the prosecutor's use of any language or device which compels a defendant to testify.
20. Prosecuting Attorneys: Trial: Evidence: Jurors. A prosecutor's argument must be based on evidence introduced rather than on matters not in evidence which serve to divert jurors from the consideration whether the accused is guilty of the crime charged.
21. Prosecuting Attorneys: Trial: Jurors. A prosecutor's appeal to the self-interest of jurors as taxpayers is improper.
William L. Binkard, South Sioux City, for appellant.
Robert M. Spire, Atty. Gen., and Donald E. Hyde, Lincoln, for appellee.
A jury convicted Randy Pierce of criminal mischief in violation of Neb.Rev.Stat. § 28-519(1)(a) (Reissue 1985). The court sentenced Pierce under § 28-519(2), Class IV felony punishment for criminal mischief resulting in pecuniary loss exceeding $300.
Pierce assigns as error the district court's failure to grant defendant's motion for a directed verdict of acquittal, failure to instruct properly on "pecuniary loss" relative to the crime of "criminal mischief," failure to direct a verdict on the issue of pecuniary loss relative to the grades of criminal mischief, failure to declare a mistrial based on the prosecutor's assertion in opening statement that the defendant would testify, and failure to declare a mistrial based on the prosecutor's statement in closing argument that the defendant was represented by court-appointed counsel.
Insofar as the prosecution of Pierce is concerned, the applicable statute, § 28-519, states:
(1) A person commits criminal mischief if he or she:
(a) Damages property of another intentionally or recklessly....
(2) Criminal mischief is a Class IV felony if the actor intentionally causes pecuniary loss in excess of three hundred dollars....
(3) Criminal mischief is a Class II misdemeanor if the actor intentionally causes pecuniary loss in excess of one hundred dollars.
(4) Criminal mischief is a Class III misdemeanor if the actor intentionally or recklessly causes pecuniary loss in an amount of one hundred dollars or less, or if his or her action results in no pecuniary loss.
In his opening statement, the prosecutor told the jury that Pierce "will testify but we do not know which version of the facts to which he will testify." At that time, Pierce's attorney requested a mistrial on account of the prosecutor's remark as a violation of Pierce's constitutional right to remain silent. After the court denied Pierce's mistrial motion, the jury received no instruction concerning the prosecutor's remark.
Keith Lynch was an employee of a liquor store. Apparently, bad feelings existed between Pierce and Lynch as the result of Pierce's attempt to pass forged checks at the liquor store.
On October 10, 1987, when Lynch had left the liquor store and was driving his Chevrolet pickup, he noticed another vehicle following closely behind his pickup. After a short distance, Lynch recognized Pierce as the driver of the following vehicle. Pierce pulled his car alongside Lynch's pickup and yelled obscenities at Lynch. Pierce continued following Lynch's pickup, eventually pulled alongside Lynch, and drove his car into the pickup, denting the pickup's left front fender and bending its bumper. Without stopping after impact, Pierce drove away.
An automobile repairman testified that the fair and reasonable cost of repair to Lynch's pickup as a result of the collision with Pierce's car was $595.94. The record does not reflect any evidence regarding the market value of Lynch's vehicle. Pierce testified in his own case.
At the conclusion of all evidence, Pierce moved for a directed verdict based on the absence of evidence regarding the value of Lynch's pickup. The court overruled Pierce's motion.
During closing argument, the prosecutor mentioned that an indigent defendant has a constitutional right to court-appointed counsel "paid for by the taxpayers ... as was done in this case." Pierce requested a mistrial. The court refused to grant a mistrial and immediately admonished the jury that the prosecutor's remark was "improper, completely irrelevant" and instructed the jury "to completely disregard the comment."
Pierce objected to any instruction which did not refer to the damaged property's market value in relation to "pecuniary loss." Pierce moved for a directed verdict on the issue of "pecuniary loss" relative to the grades of criminal mischief. The court overruled Pierce's directed verdict motion and instructed the jury that the State must prove, beyond a reasonable doubt, that Pierce intentionally damaged Lynch's property and caused Lynch to sustain a pecuniary loss in excess of $300. The court defined pecuniary loss as "loss in the form of money, property, commercial interest, or anything else, the primary significance of which is economic loss."
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