State v. Reichert
| Decision Date | 11 December 1992 |
| Docket Number | No. S-91-451,S-91-451 |
| Citation | 492 N.W.2d 874,242 Neb. 33 |
| Parties | STATE of Nebraska, Appellee, v. Terry REICHERT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed in the light most favorable to the State, is sufficient to support that conviction. The trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous.
2. Assault. A person commits the offense of assault in the third degree if he intentionally, knowingly, or recklessly causes bodily injury to another person.
3. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced his defense, that is, a demonstration of reasonable probability that but for counsel's deficient performance the result of the proceedings would have been different.
4. Effectiveness of Counsel. If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.
5. Trial: Evidence. When evidence is merely cumulative to properly admitted testimony of a defendant, the admission of such evidence over objection constitutes harmless error.
6. Sentences: Appeal and Error. A sentence within statutory limits will not be disturbed upon appeal absent an abuse of discretion.
7. Sentences: Appeal and Error. In considering a sentence, the sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
8. Appeal and Error. Assignments of error not discussed are not considered by an appellate court.
Robert L. Gridley of Robert L. Gridley Law Office, for appellant.
Don Stenberg, Atty. Gen. and Mark D. Starr, for appellee.
Terry Reichert appeals his conviction for third degree assault upon Abel Plasencio at the Scotts Bluff County fair, which resulted in Reichert's being sentenced to 15 days in jail and his being fined $500.
Reichert was found guilty of the Class I misdemeanor following a bench trial in Scotts Bluff County Court, which guilty finding and sentence he appealed to the district court for Scotts Bluff County. The district court affirmed Reichert's conviction and sentence. Reichert then appealed to this court.
On appeal to this court, Reichert claims that the district court erred in failing to find that (1) there was insufficient evidence to convict him, (2) he had ineffective assistance of counsel, (3) his sentence is excessive, and (4) the trial judge was prejudiced against him. There being no merit to any of Reichert's assignments of error, we affirm his conviction and sentence.
In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed in the light most favorable to the State, is sufficient to support that conviction. The trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous. State v. Crowdell, 241 Neb. 216, 487 N.W.2d 273 (1992); State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
Construing the facts of this case most favorably to the State, the evidence shows the following:
About 11 p.m. on August 17, 1990, Reichert was walking along the midway of the Scotts Bluff County fair when he and Plasencio accidentally bumped into each other. Plasencio testified that Reichert then became "hyper" and challenged Plasencio to a fight. Plasencio testified that when he refused to fight, Reichert pointed and said, "Oh, the cops!" While Plasencio was distracted by looking to where Reichert was pointing, Reichert kicked Plasencio in the groin and struck him in the face. Plasencio fought back, and the two wrestled on the ground. When someone in the crowd yelled that the police were coming, Reichert got up and ran.
Raymond Huffman, a Scotts Bluff County deputy sheriff working as a security officer at the county fair, arrived on the scene shortly after Reichert's departure. Huffman testified that Plasencio's clothes were torn and that he had a bloody lip and a bleeding gash on the left side of his nose. Plasencio told Huffman that Reichert had left in a Bronco, which was subsequently determined to be a Blazer. Huffman radioed this information and a possible license plate number to the Mitchell police.
George Harpole, Mitchell's assistant police chief, testified that he and his chief of police stopped a Blazer matching the description given by Huffman a short time after receiving the radio call. Reichert was a passenger in the vehicle, which was being driven by a friend of Reichert's. Reichert was not wearing a shirt at the time. Harpole noted several red marks on Reichert's body and on his face. The two Mitchell police officers asked Reichert to accompany them back to the fairground in the cruiser. Reichert complied with this request. He was not placed under arrest at that time.
Harpole testified that when he asked Reichert what went on at the fairground, Reichert denied knowing anything. Upon further questioning by the officers, Reichert denied striking Plasencio. He later admitted that he and Plasencio had fought and that he had struck Plasencio.
Reichert testified that Plasencio had lowered his shoulder and had deliberately run into him. Reichert claimed he struck Plasencio only in self-defense after Plasencio picked a fight with him. Reichert stated that when the fight was over, he got up and walked away.
As a result of the incident, Reichert was arrested and charged with assault in the third degree pursuant to Neb.Rev.Stat. § 28-310(1) (Reissue 1989).
Under § 28-310(1), "[a] person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person...." Separated, the two elements of the crime are (1) an intentional, knowing, or reckless act which (2) causes bodily injury to another person.
After Plasencio refused to fight, Reichert first distracted his victim and then mounted an unprovoked attack by kicking Plasencio in the groin and then striking him. These are obviously intentional acts. It is clear from the evidence that Plasencio suffered bodily injury as a result of the attack. These facts are legally sufficient to support a conviction for assault in the third degree. It was not clearly erroneous for the trial court to find beyond a reasonable doubt that Reichert was guilty of the crime with which he was charged.
To sustain a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced his defense, that is, a demonstration of reasonable probability that but for counsel's deficient performance the result of the proceedings would have been different. State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992); State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992). However, the two prongs of the test do not necessarily have to be addressed in order. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. State v. Wickline, supra. Accord State v. Hawthorne, 230 Neb. 343, 431 N.W.2d 630 (1988).
Reichert alleges he had ineffective assistance of counsel at trial because his attorney failed to file a motion to suppress certain statements Reichert made...
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