State v. Pierce
| Decision Date | 14 February 1995 |
| Docket Number | No. A-94-398,A-94-398 |
| Citation | 3 Neb.App. 440,527 N.W.2d 872 |
| Parties | STATE of Nebraska, Appellee, v. Timothy PIERCE, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Convictions: Juries: Circumstantial Evidence. When circumstantial evidence is the only basis upon which to support a conviction, two initial questions of law must be determined by the trial court prior to the submission of the evidence to the jury: (1) whether the circumstantial evidence is reasonably susceptible of two interpretations, one of guilt and the other of nonguilt, and (2) if so, whether the inference of guilt is stronger than the inference of nonguilt.
2. Convictions: Juries: Circumstantial Evidence. If the inference of nonguilt is stronger than or equal to the inference of guilt, then the case should not be submitted to the jury, and the circumstantial evidence is insufficient to sustain a conviction.
3. Convictions: Circumstantial Evidence: Appeal and Error. On appeal of a conviction based solely on circumstantial evidence, an appellate court must first independently decide as a matter of law whether the circumstantial evidence is reasonably susceptible of two interpretations and whether the inference of nonguilt is stronger than or equal to the inference of guilt.
4. Convictions: Juries: Appeal and Error. If an appellate court determines that the evidence was properly submitted to the jury, then on appeal the State is entitled to have all conflicting evidence and the reasonable inferences which can be drawn from the evidence viewed in its favor.
5. Criminal Law: Circumstantial Evidence: Proof. The probative value of an accused's fingerprints upon a readily movable object is highly questionable, unless it can be shown that such prints could have been impressed only during the commission of the crime.
6. Convictions: Circumstantial Evidence. In a solely circumstantial evidence case, fingerprint evidence is sufficient to sustain a conviction only if the record contains sufficient evidence from which the trier of fact can reasonably infer that the defendant's fingerprints were in fact impressed on the object in question while he was committing the crime and not at some other time.
Leonard G. Tabor, Gering, for appellant.
Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
The conviction of Timothy Pierce on appeal here is premised solely upon circumstantial evidence. Consequently, we must utilize the Nebraska Supreme Court's recent pronouncements on the subject of the standard of appellate review from State v. Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995).
Pierce was convicted by a Scotts Bluff County District Court jury of forcibly breaking and entering the home of Julie Pengelly, with the intent to commit a felony or steal property, in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1989). After an enhancement hearing, Pierce was found to be a habitual criminal as defined in Neb.Rev.Stat. § 29-2221 (Reissue 1989), and he was sentenced to an indeterminate term of 14 to 17 years' imprisonment. For the reasons cited below, we reverse the conviction.
Julie Pengelly resided alone in a house at a lakeside development comprising 30 to 35 homes at Lake Minatare located in Scotts Bluff County. On the evening of August 24, 1993, she worked in her home at tasks associated with her position as the volleyball coach at Scottsbluff High School. She retired at approximately 10:15 p.m. and awoke a minute or two before 1:49 a.m. to find a man with his hand or hands upon her shoulder. She screamed, called him a "son of a bitch," pulled her knees up to her chest, and kicked hard against his chest, propelling him across the room, where he hit a wall and fell into a chair. Pengelly immediately ran out of her home to a neighbor's, where a call was placed to 911 which was received at 1:49 a.m. Within 7 minutes, Deputy Scotts Bluff County Sheriff Vern Hessler and a Minatare police officer arrived and began an investigation of the incident.
Although there had been no interior lights on at the residence, Pengelly described the man to Hessler as a
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 had run from her home using the door on the road side of the home, but had noticed as she passed that the other door, on the lake side of the home, was closed. During the inspection of the residence in the course of the investigation, the door on the lake side was found to be open. A nearly floor-to-ceiling window screen had been removed and had been set inside the residence. Pengelly had gone to bed with this window open, but with the screen in place. The key piece of physical evidence was a Miller Genuine Draft beer bottle found by Hessler and Pengelly sitting on the ground outside of the home in front of the window where the screen had been removed. The bottle was found as Pengelly and Hessler examined the area within a matter of minutes of the occurrence. Pengelly described the bottle, when it was first discovered, as "obviously fresh, there was foam in it," and she said that the ground was wet and cold where the contents of the bottle had spilled. Pengelly and Hessler left the beer bottle where it was, but later that morning at approximately 10:30 when Pengelly returned from her volleyball practice, she decided that the beer bottle may be important. Pengelly testified that she picked the bottle up with a pencil inside the neck of the bottle; poured out the remaining beer, observing foam when it hit the ground; and took it inside. On the afternoon of August 25, this beer bottle was taken by Alex Moreno, a sheriff's investigator, who checked it for latent fingerprints. Three prints were found on the bottle, one of which was read by Linda Brokofsky, a fingerprint expert with the Nebraska State Patrol, as being a match with the right ring finger of Pierce. Moreno dusted several areas in the residence for fingerprints, including the window screen and the doorknob on the lake side door which was standing open when Pengelly and Hessler returned to the residence and examined it after the incident. However, no fingerprints or smudges were found.
Hessler found a knife (described variously in the record as a utility and a paring knife), in the yard on the road side of the residence. However, Pengelly did not testify that the man who stood over her bed displayed any weapon. A search of the home where Pierce lived, the third home west of Pengelly's, did not turn up a similar set of knives or any other matching set of knives with one missing which would account for the knife found in Pengelly's yard. No fingerprints or smudges were found on the knife.
Pengelly testified that when she fled her house, she was being chased and barked at by a dog named "Bear" which she recognized as belonging to Pierce. The evidence established that Bear was a German shepherd-Chow cross which had the physical appearance of a Rottweiler. The evidence also established that Pierce's sister, Tamara Miller, who lived with Pierce, owned a purebred Rottweiler named "Sammi Jo." Various witnesses throughout the trial related that there were typically 8 to 10 free-roaming dogs in the area, plus an occasional stray or two. Katherine Pierce, formerly Katherine Carmodie, who then lived with Pierce and his sister, testified that although Bear was often chained in the daytime, the dog was allowed to run loose at night.
When Hessler arrived in the area in response to the call, the only lights on in any residence in the area were at Bonnie Wickard's, where Pengelly had run to make the 911 call. Pierce was contacted about 3:15 on the morning of the incident after Pengelly told Hessler that "the neighbor man down the road might match the description." Hessler testified that when he first saw Pierce, he appeared as though he had just woken up, he was wearing just blue jeans, and "[h]e did have chest hair, he did have a mustache and beard." In his deposition used at trial for impeachment, Hessler testified that Pierce had said he had been asleep at the residence for several hours. When Hessler drove up to the Miller-Pierce residence at about 3:15 a.m. he observed two dogs running loose and barking at him. Hessler testified that it took a long time to rouse someone to come to the door. Hessler testified that while inside the Miller-Pierce residence, he saw Miller Genuine Draft beer, in cans, and that Pierce admitted to him that this was the brand he drank.
On the evening prior to this incident, a group of people were having a party on the beach approximately 550 feet from Pengelly's home, and included in this group were Edward Gonzales, Juanita Martinez, Cenovio Gonzales, and Lori Gonzales, all of whom testified for the State. None of these witnesses testified to seeing Pierce enter Pengelly's residence. They did testify that Pierce spent time with them that evening at that party drinking beer.
Edward Gonzales testified that he first saw Pierce around 8:30 to 9 p.m. when he came to their beach campsite with one dog following him, but looking for another one. Pierce was directed down the beach to another campsite, and he later returned with the Rottweiler-looking dog. Juanita Martinez was with Art Rivera that evening. She testified that this party was the first time she had seen Pierce, and her recollection of seeing Pierce for the first time was when he walked up to their campsite party with "the dogs" and started "talking to the guys there." She testified that they were running low on beer, and Rivera and Pierce left and came right back with "tall...
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State v. Pierce
...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 ......